Citation Nr: 21066689 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-02 075 DATE: November 1, 2021 ORDER A separate compensable rating for non-proliferative diabetic retinopathy is denied. FINDING OF FACT Throughout the period on appeal, there has been no impairment of visual acuity or visual field due to non-proliferative diabetic retinopathy; nor have there been any incapacitating episodes requiring bedrest or treatment by a physician due to non-proliferative diabetic retinopathy within a twelve-month period. CONCLUSION OF LAW The criteria for a separate compensable rating for non-proliferative diabetic retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, Diagnostic Codes 6006, 6040. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 2002 to September 2002, which included qualifying service during the Persian Gulf War for purposes of 38 C.F.R. § 3.317. See DD Form 214 (noting service in Oman from January 2002 to April 2002); 38 C.F.R. §§ 3.2(i); 3.317(e) (defining service in the Southwest Asia theater of operations). She also served during a period of active duty for training from January 1980 to April 1980 and had additional service in the Air National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. By that rating decision, the RO, in pertinent part, continued a prior 20 percent rating for diabetes. In February 2020, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The issue of entitlement to a separate compensable rating for an eye disability is being considered as part and parcel of the Veteran's appeal for an increased rating for diabetes; the remaining elements of which were previously and finally adjudicated by the Board in September 2020. The eye issue was remanded to the agency of original jurisdiction (AOJ) for additional development at that time, and again in June 2021. The Board's June 2021 remand directed the AOJ to obtain any outstanding VA treatment records and to readjudicate the matter on appeal. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a separate compensable rating for non-proliferative diabetic retinopathy Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Currently, the Veteran is not in receipt of a separate disability rating for non-proliferative diabetic retinopathy (NPDR). Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating, and noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1. The question in this case is whether the evidence of record reflects that the Veteran's diagnosed NPDR demonstrates the criteria to warrant a separate compensable disability rating. Diabetic retinopathy is rated pursuant to Diagnostic 6040, under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79. 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 for the eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect 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 for Diagnostic Code 6006 instruct VA to evaluate retinopathy using the General Rating Formula for Diseases of the Eye, which further instructs that retinopathy is to be evaluated on the basis of either visual impairment or incapacitating episodes, whichever results in the higher evaluation. 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 amendments made no substantive changes with respect to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes as to how these types of visual impairment are rated. Under both the former and revised criteria for Diagnostic Code 6066, visual acuity, a 10 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/50, and vision in the other eye is 20/50; when visual acuity in one eye (the poorer eye) is 20/70, and vision in other eye is 20/40; or when visual acuity in one eye (the poorer eye) is 20/100, and vision in the other eye is 20/40. 38 C.F.R. § 4.79. Under the former criteria for the General Rating Formula for Diseases of the Eye, where there was evidence of incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating was warranted. 38 C.F.R. § 4.79. Under the former criteria, an incapacitating episode was a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Id. Under the amended regulations, where there are documented incapacitating episodes requiring at least 1 but less than 3 visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Id. Under the revised criteria, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes, which includes, but is not limited to treatment with systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Id. Upon review of the evidence, the Board finds that a separate compensable disability rating for NPDR is not warranted. The medical evidence of record, to include the March 2015, August 2017, March 2020, and February 2021 VA examinations and post-service VA and private treatment records, does not demonstrate that the Veteran's NPDR has been manifested by an impairment of central visual acuity or visual fields at any time during the pendency of the claim. As post-service VA treatment records reflect that the Veteran was diagnosed with mild NPDR in August 2017 and June 2018, pursuant to the Board's September 2020 remand, the Veteran underwent a VA eye examination in February 2021. The VA examiner diagnosed the Veteran with open-angle glaucoma, refractive error, and mild cataracts. In so doing, the examiner opined that there was no current diagnosis of NPDR. Post-service VA treatment records also reflect that the Veteran's previously diagnosed NPDR, noted in August 2017 and June 2018, had resolved by the time of the March 2019 VA optometry evaluation, and post-service VA treatment records from March 2019 to the present are also silent for a recurrence of NPDR. At the time of the August 2017 and June 2018 VA optometry evaluations, the Veteran's corrected distance was 20/40 in her right eye and 20/30 in her left eye, and 20/30 in her right eye and 20/25 in her left eye, respectively, with no indication of a visual field defect during either eye evaluation. Further, the March 2015, August 2017, and March 2020 VA examinations for diabetes confirm that the only complication stemming from the Veteran's service-connected diabetes is her diabetic peripheral neuropathy, for which she already receives separate compensable evaluations. Here, the evidence demonstrates that the Veteran's corrected distance is shown to be 20/40 or better in both eyes at all times during the period on appeal. Further, there is no evidence of visual field impairment or any incapacitating episodes of NPDR severe enough to require prescribed bed rest or treatment by a physician or other healthcare provider at any point during the appeal period. As such, a separate compensable disability rating is not warranted for NPDR. The Board has also considered whether separate compensable disability ratings are warranted for the Veteran's open-angle glaucoma, refractive error, and mild cataracts, diagnosed during the February 2021 VA examination, in relation to her service-connected diabetes. Here, the February 2021 VA examiner found that these disabilities were not complications of the Veteran's diabetes. As to the Veteran's diagnosed open-angle glaucoma, the examiner indicated that diabetes causes or aggravates neovascular glaucoma, an entirely different type of glaucoma which the Veteran does not have. Regarding the Veteran's diagnosed cataracts, the examiner explained that the Veteran's cataracts are due to and aggravated by normal age-related progression that is unrelated to diabetes. As to the Veteran's diagnosed refractive error, the examiner indicated that this diagnosis is due to and aggravated by developmental errors of refraction that are unrelated to diabetes. Simply put, the VA examiner found that the Veteran's open-angle glaucoma, refractive error, and mild cataracts were unrelated to the Veteran's diabetes. Therefore, separate compensable evaluations are not warranted. In sum, the Board finds that the preponderance of the evidence is against a finding that a separate compensable disability rating is warranted for NPDR. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.