Citation Nr: 21065315 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 10-23 126 DATE: October 25, 2021 ORDER Entitlement to a compensable rating for left eye mild proptosis and vitreous strands is denied. FINDING OF FACT During the entire appeal period, the Veteran's service-connected left eye disability did not result in any visual impairment or any incapacitating episodes and was not manifested by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; one of the characteristics of disfigurement. CONCLUSION OF LAW The criteria for a compensable rating for left eye mild proptosis and vitreous strands are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 4.1, 4.3, 4.7, 4.79, Diagnostic Codes 6099-6017, 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1986 to November 1991. The Veteran testified before the undersigned Veterans Law Judge during an October 2017 videoconference hearing; a transcript is of record. The Board previously remanded the issue for further development in February 2018, October 2019, October 2020, and April 2021. The case has now been returned to the Board for appellate review. Compensable rating for left eye mild proptosis and vitreous strands As a preliminary matter, the Board evaluates the current severity of mild proptosis and vitreous strains in the left eye because that is the service-connected disability. The records contain somewhat inconsistent evidence concerning which eye was injured in service, as noted in the previous Board remands in October 2019 and October 2020. A review of the records reflects that a June 1992 rating decision granted service connection for mild proptosis in the left eye and small amount of vitreous in the anterior chamber, probably secondary to old trauma, based on a January 1992 VA examination. At this examination, conducted within one year since separation, the examiner found, upon physical examination, that there were a few vitreous strands with pigment in the anterior chamber of the left eye and clinically non-significant, mild proptosis of the left eye. The corrected distance visual acuity was 20/20 in each eye, and visual filed was full in each eye. The Veteran's complaint noted in the examination was some blurred vision in the left eye, intermittently since the in-service motor vehicle accident. In addition to the diagnoses of the now service-connected disabilities, refractive error, myopia with high astigmatism was noted. Since service connection was granted for these conditions that existed at the time of the original decision, with apparently normal right eye on exam, the Board proceeds to evaluate the current severity of the Veteran's service-connected left eye disability. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's claim for an increased rating was received on January 31, 2007. Therefore, the Board considers evidence of record since January 31, 2006. The Veteran's service-connected left eye disability is currently rated non-compensable under Diagnostic Code 6099-6017, as analogous to a disease of the eye under the criteria for trachomatous conjunctivitis. See 38 C.F.R. § 4.79. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. When an unlisted condition is encountered, such as proptosis and vitreous strands, it is 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. See 38 C.F.R. § 4.20. VA's schedule for rating eye disabilities was revised effective December 10, 2008 and again May 13, 2018, which is during the pendency of this appeal. However, these amended criteria govern cases only where the claim is filed on or after the effective date of the new criteria, unless the Veteran asks that his claim be adjudicated under the new criteria. See 73 Fed. Reg. 66543 (Nov. 10, 2008). 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. See also 89 Fed. Reg. 15316 (Apr. 10, 2018). Under the pre-December 2008 regulation, Diagnostic Code 6017 directed the rater, to assign, for active trachomatous conjunctivitis, a 30 percent minimum rating while there is active pathology and otherwise rate for impairment of visual acuity. And for healed trachomatous conjunctivitis, the diagnostic code directed to rate on residuals. Under the post-December 2008 and pre-May 2018 version, Diagnostic Code 6017 directed the rater to evaluate active condition based on visual impairment with minimum of 30 percent and to evaluate inactive condition based on residuals, such as visual impairment and disfigurement (diagnostic code 7800). Under the post-May 2018 version, Diagnostic Code 6017 directs the rater to evaluate active condition under the General Rating Formula for Disease of the Eyes with minimum rating of 30 percent and evaluate inactive condition based on residuals, such as visual impairment and disfigurement (diagnostic code 7800). Rating criteria for impairment of visual acuity, and more generally for visual impairment, did not substantively change in any of the revisions. The General Rating Formal for Diseases of the Eye, in effect since May 13, 2018, 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. 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). The rating criteria for evaluation of visual impairment have not changed substantively under any of the revisions. 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. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. 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). Subject to the provisions of § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75 (c). The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. Id. § 4.75(d). Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.77. Moreover, evaluation of impairment of muscle function generally refers to an evaluation of diplopia (double vision). 38 C.F.R. § 4.78. Examinations of visual field or muscle function will be conducted only when medically indicated. 38 C.F.R. § 4.75(b). For the period before December 10, 2008 A June 2006 VA treatment record indicates that the Veteran was assessed with refractive error and astigmatism. His visual acuity without correction was 20/30 in each eye, corrected to 20/20 in each eye. Visual field was full to finger counting in each eye. In his January 2007 claim, the Veteran reported that he could barely see out of his eye because it had a constant nerve condition and "jump[ed]". A May 2007 VA examination reflects a finding of healed left upper eyelid skin scars from the in-service motor vehicle accident (MVA) trauma with no ocular sequalae. The examiner noted left lower eyelid retraction with dry eye symptoms of watery eye due to exposure might be related to the MVA trauma, but the examiner stated that there were not medical records of the nature of injury or treatment available for review. The corrected visual acuity was 20/20 in each eye, and visual field was full in each eye. The optic nerve was found healthy. Thus, the evidence during this appeal period reflects that the Veteran's injury to the left eye had healed with no evidence of active symptomatology from the in-service injury. Additionally, the Veteran did not have any compensable decrease in visual acuity or visual field. No evidence indicates that he had muscle dysfunction such as diplopia. Lastly, the evidence does not indicate that watery eye he experienced due to left lower eyelid retraction caused functional impairment. Under the rating criteria in effect during this period, the Veteran's healed service-connected condition did not result in any residuals that are compensable. Therefore, a compensable rating for the left eye disability prior to December 10, 2008 is not warranted. For the period from December 10, 2008 to May 13, 2018 The Veteran underwent a VA examination in April 2017. The Veteran reported that his left eye "jumps a lot" and he would get headaches behind his left eye. The corrected distance visual acuity was 20/40 or better in each eye. There was no diplopia or visual field defect. No neurological eye condition was found. Occasional presence of vitreous floaters was noted. He did not have any scarring or disfigurement attributable to an eye condition. He did not have any incapacitating episodes due to his eye disability. No functional impairment to his ability to work was found. The examiner noted that there was no evidence of vitreous strands, but he had occasional vitreous floaters and that he had prominent eyes, but not proptosis. During the July 2017 Board hearing, the Veteran testified that he was unable to drive at night due to the "spots" the vitreous floaters caused in his sight, which also affected him during the day and he had to wear dark shade lenses to see. He stated that the oncoming headlights bothered his vision. As a result, he reported having been able to drive only during the daytime for work. He further reported that his vision was worse in the left eye and he had difficulty with reading road signs. A review of the VA treatment records pertinent to this appeal period indicates that he never sought treatment for his service-connected left eye disability. Based on a review of the evidence, the Board finds that a compensable rating for the left eye disability is not warranted under the applicable rating criteria during this appeal period. As continued from the previous period, the Veteran's left eye injuries he suffered during the in-service accident remained healed. His corrected distance visual acuity was 20/40 or better in each eye, and there was no diplopia or visual field defect. The Veteran did complain about the impact of vitreous floaters on his work; however, the evidence indicates that he was still able to work during the daytime and the impact of the floaters and photosensitivity was mitigated by wearing dark shade lenses. He also indicated that his eye "jumped" and had headaches behind the left eye; however, no neurological eye condition was found and the report of headaches has not been consistent and over a period of time with no treatment for the condition noted in the medical evidence. As such, the functional impairment from these residuals, even if they are related to the service-connected left eye disability, does not indicate that a separate evaluation is warranted. Therefore, the evidence does not support a compensable rating for visual impairment or other residuals. The diagnostic code in effect during this appeal period also allows an evaluation under Diagnostic Code 7800 for disfigurement. Since proptosis can be considered as such, the Board considers whether it can warrant a compensable rating. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. Here, the evidence does not show that the Veteran's mild proptosis resulted in any of the eight characteristics of disfigurement. It neither resulted in a scar with visible or palpable tissue loss or gross distortion or asymmetry of the eyes. As such, a compensable rating under Diagnostic Code 7800 is not warranted. For the period after May 13, 2018 to the present The Veteran underwent a VA examination in December 2018. He was diagnosed with vitreous floaters of the bilateral eyes, bilateral trace cortical cataracts, and left eye proptosis. The Veteran reported that lights bothered him and he had blurry vision in his eye. He reported treating his eye with eye drops and wearing glasses. The corrected distance visual acuity was 20/40 in each eye. No diplopia or visual field defect was found. The examiner noted that vitreous floaters were located outside the visual axis. Slight proptosis was noted in the left eye. The examiner stated that the Veteran had normal visual field to three point confrontation and the cause for the smaller visual field was that the Veteran kept blinking and was impossible to get a reliable visual field. The examiner opined that cortical cataracts could be secondary to aging and had nothing to do with proptosis of vitreous strands. The examiner observed that left proptosis was causing no symptoms and that vitreous strands were not found in the anterior chamber anymore, though she noted presence of vitreous floaters in both eyes. A January 2020 VA examination reflects a diagnosis of vitreous floaters, trace cortical cataracts, slight proptosis of the left eye. The Veteran reported he had trouble driving at night due to blinding light from other vehicles and he had slight blurry vision. The corrected distance visual acuity was 20/40 in the left eye and 20/20 or better in the right eye. No diplopia was found. The examiner conducted a Goldmann visual field test, whose results are associated with the claims file in a chart format, and found that there was no visual field defect. The examiner noted that the Veteran had slight proptosis of about 1 mm in the left eye. No functional impact on his ability to work was found. The examiner stated that the Veteran's left eye condition had not changed since the prior examination. A June 2021 addendum opinion stated that the Veteran did not have visual field constriction. Further, in a July 2021 opinion, the examiner specifically reviewed the result of January 2021 visual field studies and concluded that a defect in one isopter is not pathologic and there was no visual field defect reflected in the January 2021 studies. A review of the medical treatment records during this appeal period indicates that the Veteran did not seek treatment or had regular checkup for his service-connected left eye disability. Based on a review of the record, the Board finds that the Veteran's service-connected left eye disability did not result in any visual impairment or any incapacitating episode as defined by the rating criteria applicable during this period. In fact, the evidence preponderates for finding that his left eye condition has been stable for a while. Thus, a compensable rating is not warranted for visual impairment. Moreover, the evidence does not reflect that the Veteran's left eye proptosis resulted in any of the characteristics of disfigurement or a scar with visible or palpable tissue loss or gross distortion or asymmetry of the eyes. As such, a compensable rating under Diagnostic Code 7800 is not warranted either. (Diagnostic Code 7800 was amended, effective August 13, 2018 during this period, but the amendment did not change this diagnostic code.) In fact, the evidence preponderates for finding that his left eye condition has been stable for a while, raising little indication that an increase in the evaluation is warranted at any time during the entire appeal period. In conclusion, the Veteran's claim for a compensable rating for his left eye proptosis and vitreous strands is denied. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.