Citation Nr: 21061584 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 05-24 545 DATE: October 4, 2021 ORDER Entitlement to a compensable disability rating for bilateral lattice degeneration is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's bilateral lattice degeneration does not result in a compensable level of visual impairment or cause incapacitating episodes. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral lattice degeneration have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.83-4.84 a, Diagnostic Code 6080 (2004) 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6080 (2021) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Army from February 1980 to June 2000. This case was previously before the Board in March 2021, at which time the issues on appeal were remanded for additional development. The Board notes that a July 2021 rating decision granted the claim of entitlement to service connection for erectile dysfunction. As this represents a full grant of the benefit sought on appeal, that issue is no longer before the Board. The remaining issues have returned to the Board for appellate consideration. 1. Entitlement to a compensable disability rating for bilateral lattice degeneration Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. As an initial matter, the Board notes that the criteria for the evaluation of disabilities of the eyes were amended twice during the period on appeal: effective December 10, 2008, and effective May 13, 2018. The December 2008 amendments govern cases only when the claim is filed on or after that date. See 73 Fed. Reg. 66543 (November 10, 2008). As the instant claim was filed prior to December 10, 2008, the rating criteria revised effective December 10, 2008, are not applicable. By contrast, the May 2018 amendments were not likewise limited. See 89 Fed. Reg. 15,316 (Apr. 10, 2018). Therefore, the Board will consider the claim in light of both the former (pre-December 10, 2008) and revised (May 13, 2018) schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. In this case, the Veteran seeks an increased rating for his service-connected bilateral lattice degeneration, for which he has been in receipt of a noncompensable disability rating under Diagnostic Code 6080 of both versions of the rating criteria for the entire period on appeal. Higher ratings are available for further reduction of visual fields. See 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2004); 38 C.F.R. § 4.79, DC 6080 (2021). Evaluation of visual field is based on the remaining field of vision in each eye. Notably, prior to December 10, 2008, bilateral contraction of the visual field with remaining field of between 46 and 60 degrees warranted a 20 percent rating. As of December 10, 2008, that criteria warrants a 10 percent rating. Otherwise, the evaluation of impairment based on visual field has not substantively changed. The rating criteria for decreased visual fields has likewise remained constant despite the amendments. 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 (2004); 38 C.F.R. § 4.79, Diagnostic Code 6080 (2021). The revised criteria have provided an additional avenue for an increased rating based on incapacitating episodes. Under the revised criteria, the General Rating Formula for Diseases of the Eye 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. 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. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091. Turning to the evidence, the Board notes that the Veteran was afforded a VA examination in connection with his claim in September 2004, during which he reported defective vision without glasses. Uncorrected vision in his right eye was 20/70, corrected to 20/20; and uncorrected vision in his left eye was 20/40, corrected to 20/20. The examiner diagnosed a bilateral refractive error but found that both eyes were otherwise normal. The Veteran underwent another VA eye examination in November 2008. The examiner noted that no holes or tears in the peripheral retina had been noted on recent examinations. The Veteran reported no visual symptoms or difficulties. The examiner found no general or visual symptoms in either eye. There were no periods of incapacitation due to eye disease. Uncorrected vision in his right eye was 20/70, corrected to 20/20; and uncorrected vision in his left eye was 20/50, corrected to 20/20. There was no visual field defect. The examiner wrote that the Veteran had very mild lattice degeneration in the peripheral retinas of both eyes, but that there had been no loss of visual field or visual impairment as a result of the lattice degeneration. The Veteran underwent another VA eye examination in May 2012. The examiner noted the Veteran's diagnosis of bilateral lattice degeneration and wrote that there had been no changes in his vision or condition since the 2008 VA examination. Uncorrected and corrected vision was 20/40 or better in both eyes. There was no visual field defect. The Veteran was afforded another VA eye examination in September 2017. The examiner diagnosed peripheral lattice degeneration and noted that the Veteran's chief eye complaint was glare from the sunlight. Uncorrected and corrected distance and near vision was 20/40 or better in both eyes. There was no visual field defect, though visual field testing was performed. The examiner provided the results of that testing, as well as results of visual field tests performed in 2015. However, only six meridians were charted. In accompanying remarks, the examiner wrote that the Veteran had mild peripheral lattice degeneration of the retinas without holes or detachments, and that there had been no change of his condition since his initial VA examination. The examiner further wrote that a Goldmann visual field chart was obtained during the examination, but that based on "the Veteran's interaction with the exam and the lack of pathology present," the examiner felt that the results were not reliable and should not be used for rating purposes. The Veteran again underwent a VA eye examination in March 2018. The examiner diagnosed bilateral retinal lattice degeneration and cataracts in both eyes. Uncorrected distance visual acuity was 20/100 in the right eye and 20/40 or better in the left eye, corrected to 20/40 or better in both eyes; uncorrected near visual acuity was 20/100 in the right eye and 20/50 in the left eye, corrected to 20/40 or better in both eyes. The examiner noted that the Veteran exhibited "overall loss of visual field of both eyes" but attributed his visual impairment to his preoperative cataracts, which "impact negatively his ability to see due to the haze and light obstructing characteristics of cataracts." The examiner determined that the Veteran's visual impairment was not attributable to his bilateral lattice degeneration, noting that "[t]he mild peripheral disease defects of the retina do not have an impact upon the central acuity." The Veteran had not had any incapacitating episodes attributable to any eye condition during the past 12 months. In the remarks section, the examiner wrote that the Veteran's blurred vision would likely resolve with removal of his cataracts. He further wrote that lattice degeneration was in the far peripheral visual field and would less likely than not be identified by visual field testing; moreover, previous visual field tests had indicated no negative visual field impact by the lattice degeneration. The examiner wrote that the overall loss of visual field was at least as likely as not due to cataracts, and that the cataracts had "no relationship or contribution to the lattice degeneration development or progression in the retina. There is no known relationship between the two conditions." The examiner again emphasized that there were no symptoms associated with the lattice degeneration. The Veteran was afforded yet another VA eye examination in connection with his claim in January 2019. The examiner diagnosed combined cataracts, dry eye syndrome, and presbyopia, but not bilateral lattice degeneration. Uncorrected distance visual acuity was 20/100 in the right eye and 20/50 in the left eye, corrected to 20/40 in both eyes; uncorrected near visual acuity was 20/40 in the right eye and 20/200 in the left eye, corrected to 20/20 or better in both eyes. There was no visual field defect. The examiner attributed visual impairment to the Veteran's combined cataracts. There were no incapacitating episodes attributable to an eye condition during the previous 12 months. The Veteran was most recently afforded a VA eye examination in connection with his claim in September 2020. The examiner diagnosed dry eye syndrome, pinguecula, glaucoma suspect, and combined senile cataracts, but not lattice degeneration. Uncorrected distance visual acuity was 20/70 in the right eye and 20/100 in the left eye, corrected to 20/40 in the right eye and 20/20 or better in the left eye; uncorrected near visual acuity was 20/70 in the right eye and 20/40 in the left eye, corrected to 20/20 or better in both eyes. There was no visual field defect. The examiner wrote that the decrease in visual acuity was caused by untreated dry eye syndrome, cataracts, and a refractive error. There were no incapacitating episodes attributable to an eye condition during the previous 12 months. Accompanying visual field charts showed significant visual field defects. However, in an opinion, the examiner wrote that there was no ocular diagnosis to explain the visual field defect, and that it was therefore at least as likely as not due to "claimant fatigue during field testing." The examiner further wrote that cataracts, lattice degeneration, and glaucoma suspect were not diagnoses associated with visual field defects. VA treatment records show the Veteran has had a history of bilateral lattice degeneration throughout the period on appeal; however, the records do not show visual impairment attributable to the condition. Overall, after careful review of the evidence of record, the Board finds that a compensable rating for bilateral lattice degeneration is not warranted under Diagnostic Code 6080 at any point during the period on appeal. The evidence does not show that any visual impairment documented during the period is attributable to his bilateral lattice degeneration. Indeed, multiple VA examiners have determined that the condition has not caused visual impairment and have attributed visual impairment to other unrelated eye conditions. The evidence likewise does not show that bilateral lattice degeneration, or any other eye condition for that matter, has caused incapacitating episodes. Therefore, the Board finds that a compensable rating is likewise not warranted under the General Rating Formula for Disease of the Eye, and the Veteran's claim for an increased rating must be denied. REASONS FOR REMAND For reasons discussed below, the remaining issue on appeal must be remanded for additional development. 1. Entitlement to a TDIU prior to July 27, 2005 With regard to the Veteran's claim of entitlement to a TDIU prior to July 27, 2005, remand for referral for extraschedular consideration is necessary. Where a claimant does not meet the schedular criteria of 38 C.F.R. § 4.16 (a), the Board has no authority to assign a total disability evaluation based on individual unemployability under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board may, however, refer the claim to VA's Director of Compensation Service for extraschedular consideration. The governing norm for the Board in making the determination is whether there is a plausible basis for concluding that the Veteran is unable to secure and follow a gainful occupation. Bowling, 15 Vet. App. at 9-10. In this case, the Veteran did not meet the schedular criteria for TDIU until July 27, 2005. However, the record suggests that he may have been unemployable before then. In a formal application for TDIU submitted in January 2004, the Veteran wrote that he became too disabled to work due to his service-connected disabilities in October 2003. Records from the Social Security Administration indicate he was deemed too disabled to work as of October 15, 2003. Therefore, the Board finds that referral is warranted to determine if the Veteran is entitled to a TDIU on an extraschedular basis prior to July 27, 2005. The matter is REMANDED for the following actions: (Continued on the next page) 1. Refer the issue of entitlement to a TDIU prior to July 27, 2005 to the Director of the Compensation and Pension Service for extraschedular consideration. Place a copy of the Director's decision in the claims file. 2. Then, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.