Citation Nr: 21063973 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 12-29 437 DATE: October 18, 2021 ORDER Entitlement to a rating higher than 30 percent for central retinal vein occlusion (CRVO) is denied. FINDING OF FACT Beginning July 2, 2012, the evidence of record indicates that the Veteran's CRVO manifested in a visual acuity of 5/200 or only light perception in the poorer eye, and 20/40 in the better eye. CONCLUSION OF LAW Beginning July 2, 2012, the criteria for a rating higher than 30 percent for CRVO have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.21, 4.79, Diagnostic Codes 6000-6066 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by a Department of Veterans Affairs Regional Office (RO). In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the claims file and has been reviewed. The Board remanded the case in September 2019 and it has since returned for further appellate consideration. Entitlement to a rating higher than 30 percent for CRVO By way of history, in a previous Board decision, the Veteran was awarded a 20 percent rating for his CRVO from August 23, 2011 to July 1, 2012 and a higher 30 percent rating for CRVO beginning July 2, 2012, as well as special monthly compensation based on blindness in one eye. The Board then remanded the claim for a new eye examination in order to determine whether the Veteran was entitled to an even higher rating. For the following reasons, however, the Board now finds that a rating higher than 30 percent for the Veteran's CRVO is not warranted. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. §§ Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). In the instant case, the Veteran's eye disability is characterized as central retinal vein occlusion of the right eye, with secondary macular edema and mild lenticular cataracts of both eyes. The Veteran is currently rated under Diagnostic Code (DC) 6064 for impairment of visual acuity with no more than light perception in one eye. 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). DC 6064 provides ratings where there is no more than light perception in one eye (the poorer eye). A 30 percent rating is warranted where visual acuity in the other eye is 20/40. A 40 percent rating is warranted where visual acuity in the other eye is 20/50. A 50 percent rating is warranted where visual acuity in the other eye is 20/70. A 60 percent rating is warranted where visual acuity in the other eye is 20/100. A 70 percent rating is warranted where visual acuity in the other eye is 20/200. An 80 percent rating is warranted where visual acuity in the other eye is 15/200. A 90 percent rating is warranted where visual acuity in the other eye is 10/200. A 100 percent rating is warranted where visual acuity in the other eye is 5/200. There is no evidence of record indicating that the Veteran has visual field or muscle function defects; therefore, his service-connected eye disability will be rated based on visual acuity alone. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). Turning to relevant evidence of record, medical records indicate further worsening of visual acuity on July 2, 2012, as noted in the prior September 2019 Board decision. Beginning in July 2012, the medical evidence shows the Veteran was able to count fingers at a distance of only one to three feet from the right eye, and therefore was considered to have no more than light perception in this eye. Corrected distance in the left eye remained from 20/20 to 20/25 throughout the rating period. The January 2019 VA examination confirm these findings, as the Veteran's corrected distance vision in the right eye was found to be 5/200 or worse, with the right eye having light perception only. The left eye was 20/40 at the examination. In July 2020, the Veteran was afforded another VA eye examination in which his corrected distance in the left eye again measured 20/40, with his right eye continuing to measure 5/200 or worse with no more than light perception. Under DC 6065, visual acuity of 5/200 in one eye and 20/40 in the other eye results in a 30 percent rating. Under DC 6064, when there is no more than light perception in one eye and visual acuity of 20/40 in the other eye, the resulting rating is still 30 percent. Consequently, a rating higher than 30 percent is not warranted. No other DC for diseases of the eye would result in a higher rating for the Veteran. To this end, the Board has considered whether rating under DC 6027 for cataracts would be appropriate, given his service-connected condition includes cataracts. Consideration under DC 6027 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 became effective on 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. Both the former and revised criteria distinguish preoperative and postoperative cataracts. The Veteran's cataracts are considered preoperative. For pre-operative cataracts, the former criteria instructed to evaluate based on visual impairment and the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. Thus, as explained above, the Veteran's rating, based on visual impairment, does not warrant a rating higher than 30 percent. The General Rating Formula for Diseases of the Eye instructs to evaluate a condition 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. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. Prior to May 2018, the General Rating Formula for DCs 6000 through 6009 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 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. Here, the evidence of record does not indicate the Veteran experienced incapacitating episodes under the pre-May 2018 definition. After May 2018, 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, DCs 6061-6091. Here, the Board acknowledges that after May 2018, the Veteran was seen on multiple occasions for treatment related to his interocular pressure. Indeed his 2019 and 2020 VA examinations note that he has been prescribed Timolol, a topical glaucoma medication to treat his current eye condition. The Board must therefore consider whether these episodes qualify as "treatment" under the specific definition of § 4.79, and the Board finds that they do not. The treatment records reflect that the Veteran was prescribed eye drops to be used as directed and instructed to return regularly for future monitoring. The examples listed under § 4.79 suggest an implicit requirement that a qualifying "treatment" must require administration by a physician or otherwise implicate a certain severity of potential side effect: " systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions." 38 C.F.R. § 4.79 (emphasis added). The Board therefore finds that the eye drops prescribed for the Veteran to be used as directed on an outpatient basis do not qualify as "treatment" as defined by § 4.79. The Board also notes that the Veteran's several VA examinations also found no incapacitating episodes attributable to any eye conditions. There is thus no basis under the General Rating Formula for a higher rating for the Veteran's CRVO pursuant to DC 6027. 38 C.F.R. § 4.79. The Board has considered the Veteran's contentions that his eye disability warrants a higher disability rating. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is competent to provide statements about what he observes or experiences concerning his eye disability. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his service-connected disability according to the appropriate diagnostic code; such competent evidence concerning the nature and extent of the Veteran's eye disability has been demonstrated by the medical evidence that existed at that time. The medical findings directly address the criteria under which the Veteran's disability is evaluated. As such, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted. The Board notes further that the Veteran, through his representative, asserts in a September 2021 written brief that his eye disability affects his activities of daily living. However, the Board finds that his symptoms have been adequately addressed by the assigned rating criteria. The Veteran's service-connected eye disability is manifested by visual impairment and its resulting impairment, and is contemplated by the rating schedule. (Continued on the next page) In sum, during the period on appeal, the evidence of record indicates that the Veteran's CRVO manifested in a visual acuity of 5/200 or only light perception in the poorer eye, and 20/40 in the better eye. Entitlement to a rating higher than 30 percent for CRVO is therefore denied. The Board has further considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the award of a rating higher than that assigned above. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.