Citation Nr: 21063567 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-62 041 DATE: October 14, 2021 ORDER Entitlement to an initial disability rating of 10 percent, and no higher, for bilateral ocular hypertension is granted. FINDING OF FACT The Veteran's bilateral ocular hypertension manifests as impaired visual acuity to no worse than 20/40 corrected distance bilaterally; occasional pain, and requires continuous medication (eye drops) throughout the period on appeal. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, and no higher, for bilateral ocular hypertension have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6013, 6066. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1979 until his honorable discharge in November 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2019, the Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ), sitting at the Regional Office (RO) in St. Petersburg, Florida. A transcript of the hearing has been associated with the record on appeal. In August 2021, the Veteran was advised that the VLJ is no longer with the Board and was afforded an opportunity to obtain an additional Board hearing. The Veteran failed to respond to the August 2021 notification within the applicable time period and the Board shall now decide the case on the evidence of record. In January 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to ask the Veteran to identify all outstanding treatment records relevant to his bilateral ocular hypertension and to schedule the Veteran with a VA eye examination. In response, in September 2020, the RO sent the Veteran a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs. Additionally, in May 2021, the RO provided the Veteran with a VA eye examination. The Board notes that in October 2020, the Veteran returned the above forms identifying his medical provider as only the James A. Haley Veterans Hospital (Tampa, Florida VA Medical Center). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). 1. Entitlement to an initial compensable disability rating for bilateral ocular hypertension The Veteran asserts that he is entitled to a compensable disability rating for his bilateral ocular hypertension. The Board notes that the Veteran is also diagnosed with bilateral preoperative cataracts, but he is not service connected for this disability and any visual impairment(s) caused by anything beyond his service-connected bilateral ocular hypertension is not applicable for rating purposes. However, as will be addressed below, the Veteran's corrected distance visual acuity and visual fields (even including other disabilities) would not result in an increased disability rating. The Veteran is rated under Diagnostic Code 6099-6066. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. Unlisted disabilities requiring rating by analogy are coded with the first two numbers of the schedule provisions most closely related body part and 99. Here, the hyphenated diagnostic code indicates that the Veteran's bilateral ocular hypertension disability is currently rated as analogous to a disease of the eye (Diagnostic Code 6099) under the criteria for impairment of central visual acuity (Diagnostic Code 6066). 38 C.F.R. § 4.79, Diagnostic Code 6099-6066. This is not the appropriate disability rating because the Veteran does not have impairment of his visual acuity due to his bilateral ocular hypertension. The assigned Diagnostic Code 6099-6066 suggests that the Veteran's bilateral ocular hypertension is rated based on compensable limitation of visual acuity of the Veteran's uncorrected vision. 38 C.F.R. § 4.79. Evaluation of visual acuity is based upon corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). Diagnostic Code 6066 is based upon corrected distance vision with central fixation. A review of the evidence reflects that the Veteran's bilateral ocular hypertension has manifested in corrected distance vision with central fixation of 20/20 or better bilaterally. Therefore, the Diagnostic Code assigned should have been Diagnostic Code 6099-6013, to show that the Veteran's bilateral ocular hypertension is being rated based on upon a similar disability, specifically glaucoma that more closely correlates with the Veteran's symptoms (high eye pressure requiring continuous medication, specifically eye drops). For this reason, the Board is changing the Diagnostic Code for the Veteran's bilateral ocular hypertension to 6099-6013 to reflect the actual rating already assigned. 38 C.F.R. § 4.79. The Veteran's bilateral ocular hypertension is rated under 38 C.F.R. § 4.79, Diagnostic Code 6013. Under Diagnostic Code 6013, disability ratings are assigned based upon the General Rating Formula for Diseases of the Eye with a minimum evaluation of 10 percent if continuous medication is required. The Board notes that the Veteran is prescribed continuous medication for his bilateral ocular hypertension (sometimes referred to as glaucoma in his VA treatment records). Therefore, the Board finds that the minimum disability rating of 10 percent is applicable. During the pendency of the Veteran's appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address the organics of special sense and schedule of ratings-eye. 83 Fed. Reg. 15316 (April 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. Under both the former and revised criteria, a 10 percent disability rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. Both versions of the criteria also provide for an alternative basis for the evaluation if it results in a higher disability rating. Under the former criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate the disability 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. Prior to the May 13, 2018 changes, the criteria under the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent disability rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent disability rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent disability rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent disability rating is warranted. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Id. From May 13, 2018; the criteria under the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79. Where documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition in the past 12 months, a 10 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 20 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 40 percent disability rating is warranted. Where documented incapacitating episodes requiring 7 or more treatment visits for an eye condition in the past 12 months, during the past 12 months, a 60 percent disability rating is warranted. The Board also notes that the May 2018 changes also included a change to the Note(s) under General Rating Formula for Diagnostic Codes 6000 through 6009. Specifically, prior to the May 2018 changes, the Note provided "For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider." However, subsequent to the May 2018 changes, there are now three notes under General Rating Formula for Diagnostic Codes 6000 through 6009. Note: (1) provides "For the purposes of evaluation 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) provides "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) provides for the purposes of evaluating visual impairment due to the particular condition, refer to 38 C.F.R. §§ 4.75 through 4.78 and 4.79, Diagnostic Codes 6061-6091. However, the Board notes that the Veteran does not assert, nor does the record reflect that he has had incapacitating episodes under the prior nor current criteria. Therefore, the Board will evaluate based upon the Veteran's visual impairment(s) with a minimum evaluation of 10 percent due to the requirement for continuous medication, as noted above. Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. §§ 4.76(a), 4.79. The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found. 38 C.F.R. § 4.76(b). Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Id. Unless medically contraindicated, the fundus must be examined with the Veteran's pupils dilated. Id. Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009. Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066. Impairment of Visual Fields is rated under Diagnostic Codes 6080 through 6081. Examinations of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen's test type or its equivalent. 38 C.F.R. § 4.76(a). Evaluation of central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76(b). However, when 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 (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. Id. A June 2012 VA examination reveals that the Veteran had [insert Veteran's lay contentions regarding functional impairment]. 06.21.2012 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT N/A 20/40 or better N/A 20/40 or better LEFT N/A 20/40 or better N/A 20/40 or better The June 2012 VA examination also revealed that the Veteran did not have a documented visual field defect. A December 2020 VA examination reveals that the Veteran had bilateral ocular hypertension, bilateral preoperative cataracts, and occasional pressure-like pain in his eyes. 12.04.2020 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/70 20/20 or better 20/200 20/20 or better LEFT 20/200 20/20 or better 20/70 20/20 or better The December 2020 VA examination also revealed that the Veteran did not have a documented visual field defect. Based on the evidence above, a compensable disability rating is warranted. Specifically, the Veteran is entitled to a disability rating of 10 percent, and no higher. The Veteran's visual acuity of no worse than 20/40 corrected distance bilaterally warrants a noncompensable disability rating. However, as noted above, the Veteran has been on continuous medication throughout the period on appeal and therefore, a minimum 10 percent disability is warranted. Accordingly, the preponderance of the most probative evidence is for the claim of entitlement to a disability rating of 10 percent, and no higher, for his service-connected bilateral ocular hypertension requiring continuous medication without a loss of visual acuity, nor impairment of visual field, nor impairment of muscle function. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.