Citation Nr: 21063709 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-03 577 DATE: October 15, 2021 ORDER Entitlement to an initial disability rating in excess of 60 percent for diabetic retinopathy and nuclear cataracts associated with type II diabetes mellitus prior to June 16, 2021; is denied. Entitlement to a disability rating in excess of 70 percent for diabetic retinopathy and nuclear cataracts associated with type II diabetes mellitus from June 16, 2021; is denied. FINDINGS OF FACT 1. Prior to June 16, 2021, the Veteran's bilateral diabetic retinopathy and nuclear cataracts manifests as impaired visual acuity to no worse than 20/50 in the right eye and no worse than 20/70 in the left eye; impaired visual fields with an average concentric contraction of no less than 16 to degrees bilaterally; and zero incapacitating episodes in a twelve-month period. 2. From June 16, 2021, the Veteran's bilateral diabetic retinopathy and nuclear cataracts manifests as impaired visual acuity to no worse than 20/70 bilaterally; impaired visual fields with an average concentric contraction of no less than 16 degrees in the right eye and no less than 6 degrees in the left eye; and zero incapacitating episodes in a twelve-month period. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 60 percent for bilateral diabetic retinopathy and nuclear cataracts have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6006, 6027, 6040, 6066, and 6080. 2. The criteria for a disability rating in excess of 70 percent for bilateral diabetic retinopathy and nuclear cataracts have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6006, 6027, 6040, 6066, and 6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1964 until his honorable discharge in April 1966. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from the September 2014 and August 2021 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In September 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a new VA examination because September 2018 VA treatment records indicated that the Veteran's visual field may have deteriorated. In response, the RO obtained a VA examination in August 2021. 1. Entitlement to an initial disability rating in excess of 60 percent for diabetic retinopathy and nuclear cataracts associated with type II diabetes mellitus prior to June 16, 2021 2. Entitlement to a disability rating in excess of 70 percent for diabetic retinopathy and nuclear cataracts associated with type II diabetes mellitus from June 16, 2021 Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he is entitled to a higher disability rating for his diabetic retinopathy and nuclear cataracts. 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. Impairment of Muscle Function is rated under Diagnostic Codes 6090 through 6091. As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted. The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code). The Veteran is currently assigned a 60 percent disability rating prior to June 16, 2021 and a 70 percent disability rating from June 16, 2021 under Diagnostic Code 6027-6066 for diabetic retinopathy and nuclear cataracts associated with type II diabetes mellitus. Diagnostic Code 6027 provides for rating cataracts. Diagnostic Code 6066 provides for rating impairment of visual acuity with a corrected distance visual acuity of 10/200 or better. Accordingly, the Veteran is currently being rated for impairment of visual acuity with a corrected distance visual acuity of 10/200 or better due to bilateral nuclear cataracts. However, a February 2015 VA examination demonstrated that the Veteran is diagnosed with diabetic retinopathy and bilateral nuclear cataracts associated with type II diabetes mellitus. Therefore, the Board finds that a rating under Diagnostic Code 6027-6066 is not the appropriate Diagnostic Code to rate the Veteran's disability. The evidence does show that the Veteran's visual impairment is limited to visual acuity but also has defects of the visual field. Furthermore, the February 2015 VA examination demonstrates that both Diabetic Retinopathy and Nuclear Cataracts are applicable. As such, the Board finds that a rating under Diagnostic Code 6027-6040 for diabetic retinopathy for his bilateral diabetic retinopathy with nuclear cataracts associated with type II diabetes mellitus is the more appropriate Diagnostic Code. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 6027-6040. 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. In the present case, the Veteran is rated under Diagnostic Code 6027 for bilateral nuclear cataracts on the basis of Diagnostic Code 6040 for diabetic retinopathy for his bilateral diabetic retinopathy with nuclear cataracts associated with type II diabetes mellitus. The Board further notes that the Veteran's current disability has been rated under Diagnostic Code 6027-6066 for 7 years and is not afforded protection under 38 U.S.C. § 1159. However, the Board also notes that the Veteran both the prior and current Diagnostic Codes are rated under the same criteria and the change in Diagnostic Code will not change the Veteran's disability rating. Under Diagnostic Code 6027, preoperative cataracts are rated under the General Rating Formula for Diseases of the eye. Postoperative cataracts are rated under the General Rating Formula for Diseases of the eye if there is a replacement lens present or under Diagnostic Code 6029 for aphakia if there are not replacement lens present. 38 C.F.R. § 4.79, Diagnostic Code 6027. In the present case, at the time of the February 2015 VA examination, the Veteran's bilateral cataracts were preoperative bilaterally and therefore, a rating under the General Rating Formula for Diseases of the Eye is appropriate. Subsequently, at the time of the June 2021 VA examination, the Veteran's cataract in his right eye was still preoperative, but the Veteran's cataract in his left eye had become postoperative with a replacement intraocular lens (pseudophakia). Therefore, although there had been a change to the Veteran's cataract disabilities, rating the disabilities under the General Rating Formula for Diseases of the Eye is still appropriate because he had a replacement intraocular lens (pseudophakia). Although the Veteran has Diabetic Retinopathy rated under Diagnostic Code 6040, retinopathy (generally) or maculopathy is rated under the General Rating Formula for Diseases of the Eye. The Board notes that although the June 2021 VA examiner clearly identifies that the Veteran's cataracts are age-related cataracts bringing into question if the disability should be service-connected, the Board will not disturb the prior decisions and differing opinion from the prior VA examiner. Affording the Veteran the benefit of the doubt, the Board shall evaluate the Veteran's visual impairment(s) to determine the severity of his disabilities based upon the service-connected disabilities that had previously been granted (including the nuclear cataracts). 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. Under the former criteria, 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. 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 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 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 rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula for Diseases of the Eye 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. 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 through 4.78 and to § 4.79, Diagnostic Codes 6061 through 6091. The Board notes that the record does not indicate nor does the Veteran assert that he has had incapacitating episodes during the period on appeal. Therefore, the Board shall evaluate the Veteran's service-connected eye disabilities based upon visual impairment, including impairments of visual acuity, visual fields, and/or muscle function. The criteria for visual impairment, including impairments of visual acuity, visual fields, and/or muscle function, have remained unchanged. Impaired visual acuity is rated under Diagnostic Codes 6061 through 6066 based on the best corrected distance vision. 38 C.F.R. §§ 4.76, 4.79. Impairment of visual fields are rated under Diagnostic Codes 6080 through 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 muscle function is rated under Diagnostic Codes 6090 through 6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.78, 4.79. Impairment of central visual acuity is evaluated on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76. Visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. 38 C.F.R. § 4.79, Diagnostic Codes 6061 through 6066. A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 20/100 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/70 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (4) or when corrected visual acuity is 20/50 in both eyes. 38 C.F.R. § 4.84a, Diagnostic Codes 6078 and 6079; 38 C.F.R. § 4.79, Diagnostic Code 6066. A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 15/200 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/200 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/100 in one eye and 20/50 in the other eye; or (4) corrected visual acuity of 20/70 in one eye and 20/50 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6077 and 6078; 38 C.F.R. § 4.79, Diagnostic Code 6066. A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity in both eyes is 20/70; (2) corrected visual acuity in one eye is 20/100 and the other eye is 20/70; (3) corrected visual acuity in one eye is 20/200 in one eye and 20/50 in the other eye; (4) corrected visual acuity in one eye is 15/200 and 20/50 in the other eye; (5) corrected visual acuity in one eye is 10/200 and 20/40 in the other eye; (6) corrected visual acuity in one eye is 5/200 and 20/40 in the other eye; or (7) blindness of one eye and corrected vision to 20/40 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6070, 6074, 6076, 6077, and 6078; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and 20/70 in the other eye; (2) corrected visual acuity of one eye is to 15/200 and 20/70 in the other eye; (3) corrected visual acuity in one eye is to 10/200 and 20/50 in the other eye; (4) corrected visual acuity is to 5/200 in one eye and 20/50 in the other eye; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes, 6066, 6070, 6073, and 6076; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 50 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is to 20/100 in both eyes; (2) corrected visual acuity is to 10/200 in one eye and to 20/70 in the other eye; (3) corrected visual acuity is to 5/200 in one eye and 20/70 in the other eye; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, respectively. 38 C.F.R. § 4.84a, Diagnostic Codes, 6065, 6069, 6073, 6076, and 6078; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 60 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/100; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/100; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/100; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/100; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/100 or 20/70 or 20/100, respectively. 38 C.F.R. § 4.84a, Diagnostic Codes, 6065, 6069, 6073, and 6076; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 70 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/200; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/200; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/200; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/200; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, and 6075; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. An 80 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 15/200 and the other eye is 15/200; (2) corrected visual acuity of one eye is to 10/200 and the other eye is to 15/200; (3) corrected visual acuity of one eye is to 5/200 and the other eye is to 15/200; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 15/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, and 6075; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 90 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 10/200 and the other eye is 10/200; (2) corrected visual acuity of one eye is to 5/200 and the other eye is to 10/200; or (3) blindness or anatomical loss of one eye and corrected vision in the other eye to 10/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, and 6075; 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065, and 6066. A 100 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 5/200 and the other eye is 5/200; (2) blindness or anatomical loss of one eye and corrected vision in the other eye to 5/200; or (3) blindness or anatomical loss of both eyes. 38 C.F.R. § 4.84a, Diagnostic Codes 6061, 6062, 6063, 6067, and 6071; 38 C.F.R. § 4.79, Diagnostic Codes 6064 and 6065. 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. For evaluations of restrictions in visual field(s), the examiner must use either Goldmann kinetic perimetry or automated perimetry using Humphrey Model 750, Octopus Model 101, or later versions of these perimetric devices with simulated kinetic Goldmann testing capability. 38 C.F.R. § 4.77. Determination of the average concentric contraction of the visual field of each eye by measuring the remaining visual field (in degrees) at each of the eight principal meridians 45 degrees apart, adding them, and dividing the sum by eight. 38 C.F.R. § 4.77(b). 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, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of 38 C.F.R. § 4.25. Prior to June 16, 2021 A February 2015 VA examination reveals that the Veteran had dry eyes and notices his peripheral vision has deteriorated. 02.06.2015 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 15/200 20/50 15/200 20/40 or better LEFT 15/200 20/70 15/200 20/50 The February 2015 VA examination also revealed that the Veteran has a documented visual field defect. Normal Right Left Up 45 19 13 Up Temporally 55 39 20 Temporally 85 50 28 Down Temporally 85 35 50 Down 65 22 25 Down Nasally 50 20 15 Nasally 60 30 5 Up Nasally 55 22 15 The Veteran's average concentric contraction of the visual field of each eye results in a right eye contraction of 29.625 degrees and left eye contraction of 21.375 degrees. Based on the evidence above, a disability rating in excess of 60 percent for the Veteran's loss of visual acuity visual field is not warranted. The Veteran's visual acuity of 20/50 corrected distance in the right eye and 20/70 corrected distance in the left eye warrants a 20 percent disability rating. Additionally, the Veteran's average contraction of the visual field of 16 to 30 degrees bilaterally warrants a 50 percent disability rating. Combining the Veteran's results for visual acuity disability rating of 20 percent disabling and contraction of visual field disability rating of 50 percent disabling results in a combined disability rating of 60 percent disabling. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 60 percent for a loss of visual acuity and impairment of visual field prior to June 15, 2021. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From June 16, 2021 A June 2021 VA examination reveals that the Veteran had the following visual impairments. 06.16.2021 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/100 20/70 20/200 20/100 LEFT 20/100 20/70 20/200 20/70 The June 2021 VA examination also revealed that the Veteran has a documented visual field defect. Normal Right Left Up 45 20 15 Up Temporally 55 40 0 Temporally 85 38 25 Down Temporally 85 35 22 Down 65 22 22 Down Nasally 50 42 15 Nasally 60 0 10 Up Nasally 55 22 12 The Veteran's average concentric contraction of the visual field of each eye results in a right eye contraction of 27.375 degrees and left eye contraction of 15.125 degrees. Based on the evidence above, a disability rating in excess of 70 percent for the Veteran's loss of visual acuity and visual field is not warranted. The Veteran's visual acuity of 20/70 corrected distance bilaterally warrants a 30 percent disability rating. Additionally, the Veteran's average contraction of the visual field of 27.375 degrees in the right eye and 15.125 degrees in the left eye warrants a 60 percent disability rating. Combining the Veteran's results for visual acuity disability rating of 30 percent disabling and contraction of visual field disability rating of 60 percent disabling results in a combined disability rating of 70 percent disabling. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 70 percent for a loss of visual acuity and impairment of visual field from June 16, 2021. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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.