Citation Nr: A21018366 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 210421-154668 DATE: November 17, 2021 ORDER Entitlement to service connection for left eye diabetic retinopathy and left eye cataract (pseudophakia) is granted. Entitlement to a separate noncompensable rating for right eye macular edema, bilateral diabetic retinopathy, and bilateral cataracts (pseudophakia) from December 3, 2013 to May 13, 2018 is denied. Entitlement to a rating of 60 percent for right eye macular edema, bilateral diabetic retinopathy, and bilateral cataracts (pseudophakia) as of an earlier effective date namely, as of May 13, 2018 (rather than just as of February 20, 2019), is granted. FINDINGS OF FACT 1. The Veteran's left eye retinopathy and cataract (pseudophakia) are proximately due to his service-connected Diabetes Mellitus, Type II (DMII), i.e., complications of it. 2. From December 3, 2013 to May 13, 2018, his visual acuity measured 20/40 bilaterally; he did not have a visual field defect; he did not experience muscle dysfunction; and he did not experience incapacitating episodes. 3. Beginning May 13, 2018, he experienced documented incapacitating episodes requiring 7 or more treatment visits. CONCLUSIONS OF LAW 1. The criteria are met for entitlement to service connection for left eye retinopathy and bilateral cataracts (pseudophakia) since secondary to already determined to be service-connected DMII. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria are not met, however, for entitlement to separate compensable ratings for right eye macular edema, bilateral diabetic retinopathy, and bilateral cataracts (pseudophakia) from December 3, 2013 to May 13, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.75-4.79, Diagnostic Code (DC) 6040. 3. But the criteria are met for entitlement to a 60 percent rating for right eye macular edema, bilateral diabetic retinopathy, and bilateral cataracts (pseudophakia) as of an earlier effective date namely, as of May 13, 2018 (rather than just as of February 20, 2019). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.75-4.79, DC 6040. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the U. S. Navy from September 1964 to December 1967. In March 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, asking for review of a January 2021 rating decision based on new and relevant evidence. Later in March 2021, in response, the local Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), issued the rating decision on appeal, which implicitly found that new and relevant evidence had been received since it addressed the merits of the Veteran's claim for service connection for his left eye condition and his claim for an increased rating for his right eye condition even if not expressly discussing whether new and relevant evidence had been received to warrant readjudicating these claims. This is considered a favorable finding by the AOJ and the Board is bound by it so will proceed immediately to addressing these claims on their underlying merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for left eye diabetic retinopathy and bilateral cataracts (pseudophakia) is granted. The Veteran contends that he is entitled to service connection for his left eye retinopathy. Service connection already has been granted for his right eye retinopathy and cataract (pseudophakia); and, for the following reasons and bases, the Board additionally finds that service connection also is warranted for his left eye retinopathy and cataract since they, too, are complications of, so secondary to, his already determined to be service-connected DMII. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.310; see also Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Notably, a February 2020 VA examiner indicated in his discussion of submitted treatment records that the Veteran had been diagnosed with diabetic retinopathy "OU" (meaning affecting both eyes). This same examiner also noted a diagnosis of pseudophakia (cataracts), also in both eyes ("OU"/bilaterally). This examiner then commented that "the given diagnosis diabetes with retinopathy and macular edema affects the right eye. . . ." and that the Veteran's dry eye syndrome and cataracts were less likely than not directly related to his herbicide exposure, although not addressing whether they are secondarily related to his service-connected DMII. A subsequent addendum opinion in August 2020, however, readily acknowledges that diabetes is a direct cause of retinopathy and a factor in cataract formation. Additional private treatment records from November 2008 also show a diagnosis of "moderately severe diabetic retinopathy OU." Moreover, a February 2021 note from the Veteran's ophthalmologist indicates the Veteran has been receiving treatment for his bilateral diabetic retinopathy since September 2013. While the Board acknowledges the report of the February 2020 VA examination indicates the Veteran only has diabetic retinopathy and pseudophakia referable to his right eye, there are a multitude of private treatment records he has submitted in support of his claim confirming he has received additional diagnoses of and is currently being treated for diabetic retinopathy, bilaterally, so also involving his left eye. It also notes findings from the February 2020 VA examiner that, in fact, indicate both a bilateral diagnosis of diabetic retinopathy as well as a diagnosis of bilateral cataracts in addition to the subsequent August 2020 addendum opinion indicating DMII is a factor in the development of cataracts. Thus, when considering all evidence relevant this claim, the Board finds the evidence is at least in relative balance (equipoise), if not more favorable to the claim, concerning whether the Veteran's currently diagnosed left eye conditions, including especially his retinopathy and cataracts, are complications of his already determined to be service connected DMII. Certainly then, when resolving all reasonable doubt in his favor, his left eye retinopathy and cataracts are secondary to (meaning caused or aggravated by) his service connected DMII. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Entitlement to a separate albeit noncompensable, rating for right eye macular edema, bilateral diabetic retinopathy, and bilateral cataracts (pseudophakia) is granted from December 3, 2013 to May 13, 2018. 3. However, a 60 percent rating for right eye macular edema, bilateral diabetic retinopathy, and bilateral cataracts (pseudophakia) is granted beginning the earlier date of May 13, 2018. By way of history, the Board notes that the claim for service connection for right eye retinopathy was granted as part of an August 2020 rating decision with an initial 10 percent evaluation as a part of the Veteran's evaluation for DMII. VA had received his initial application for service connection on December 3, 2013. In the August 2020 rating decision, the Veteran's retinopathy was rated in conjunction with his DMII. The RO noted, and the Board agrees, that his retinopathy would be considered noncompensable if separately rated during the period prior to May 13, 2018. He then timely filed a supplemental claim in January 2021, contending he was entitled to a separate compensable evaluation for his retinopathy. He was thereafter granted a higher 60 percent evaluation for his right eye retinopathy beginning February 20, 2019. He then filed an additional supplemental claim in March 2021 disputing the January 2021 rating decision granting 60 percent from February 20, 2019, contending he was entitled to an earlier effective date for this evaluation as well as service connection for his left eye conditions (retinopathy and cataracts). The RO then issued the March 2021 rating decision currently on appeal, denying an earlier effective date for the higher 60 percent evaluation and denying service connection for the left eye conditions. The Veteran in response submitted a Notice of Disagreement (NOD) in April 2021, arguing that his 60 percent evaluation should begin earlier than the assigned date of February 20, 2019, contending that the injections he receives to treat his eye conditions should be considered incapacitating episodes for rating purposes. The Board agrees for the following reasons and bases and assigns the 60 percent rating as of an earlier effective date namely, as of May 13, 2018. At the outset, the Board notes that, during the pendency of this 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 went into effect May 13, 2018, and it is this new rule that the Veteran references in his contentions. 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, notably, an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran's eye conditions, now service-connected bilaterally, are rated at 60 percent under 38 C.F.R. § 4.79, DC 6040, for diabetic retinopathy. As of May 13, 2018, DC 6040 is part of the General Rating Formula for Diseases of the Eye. Prior to May 13, 2018, however, Diabetic Neuropathy was rated according to DC 6066 for visual acuity. For the following reasons and bases, the Board finds that an earlier date for a separate 60 percent evaluation for the Veteran's eye conditions is warranted beginning May 13, 2018, but no earlier. The General Rating Formula for DCs 6000 through 6009 instructs to evaluate based on either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Prior to May 13, 2018: 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. After May 13, 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. Visual Impairment: 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). With regards to the May 2018 regulatory changes, there were no substantive changes to §§ 4.75, 4.76, or the table of Impairment of Central Visual Acuity. Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. 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). TABLE FOR VISUAL ACUITY The table of Impairment of Central Visual Acuity encompasses DCs 6061-66. Under DC 6061, a 100 percent rating is warranted for anatomical loss of both eyes. Under DC 6062, a 100 percent rating is warranted for no more than light perception in both eyes. DC 6063 provides ratings where there is anatomical loss of one eye (the poorer eye). A 40 percent rating is warranted where visual acuity of the other eye is 20/40. A 50 percent rating is warranted where visual acuity of the other eye is 20/50. A 60 percent rating is warranted where visual acuity of the other eye is 20/100 or 20/70. A 70 percent rating is warranted where visual acuity of the other eye is 20/200. An 80 percent rating is warranted where visual acuity of the other eye is 15/200. A 90 percent rating is warranted where visual acuity of the other eye is 10/200. A 100 percent rating is warranted where visual acuity of the other eye is 5/200. 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. DC 6065 provides ratings where vision in one eye (the poorer eye) is 5/200. A 30 percent rating is warranted where vision in the other eye is 20/40. A 40 percent rating is warranted where vision in the other eye is 20/50. A 50 percent rating is warranted where vision in the other eye is20/70. A 60 percent rating is warranted where vision in the other eye is 20/100. A 70 percent rating is warranted where vision in the other eye is 20/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 90 percent rating is warranted where vision in the other eye is 10/200. A 100 percent rating is warranted where vision in the other eye is also 5/200. DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in one eye (the poorer eye) is 20/50, the following ratings apply. A 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Where the visual acuity in one eye (the poorer eye) is 20/70, the following ratings apply. A 30 percent rating is warranted where vision in the other eye is also 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40. Where the visual acuity in one eye (the poorer eye) is 20/100, the following ratings apply. A 50 percent rating is warranted where vision in the other eye is also 20/100. A 30 percent rating is warranted where vision in the other eye is 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40. Where visual acuity in one eye (the poorer eye) is 20/200, the following ratings apply. A 70 percent rating is warranted where vision in the other eye is also 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40. Where visual acuity in one eye (the poorer eye) is 15/200, the following ratings apply. An 80 percent rating is warranted where vision in the other eye is also 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40. Where visual acuity in one eye (the poorer eye) is 10/200, the following ratings apply. A 90 percent rating is warranted where vision in the other eye is also 10/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 50 percent rating is warranted where vision in the other eye is 20/70. A 40 percent rating is warranted where vision in the other eye is 20/50. A 30 percent rating is warranted where vision in the other eye is 20/40. As noted above, the Veteran was afforded a VA examination in March 2020 in which his visual acuity was noted as 20/40 bilaterally. He was not found to have a visual field defect and was also not found to have muscular impairment. He was also not found to have experienced incapacitating episodes; however, the Board notes that private treatment records indicate he has been receiving intraocular injections51 times since 2013. In reviewing treatment records, the Board finds that the Veteran's injections are considered "treatment" under the most recent change to 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 evidence of record indicates the Veteran, prior to the May 2018 changes to the rating criteria, experienced neither incapacitating episodes nor decreased visual acuity meaning his eye condition is considered noncompensable under the former rating criteria. Notably, 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. The Veteran's treatment records indicate several treatments prior to May 13, 2018, which include eye injections; however, the treatment records do not mention any prescribed bedrest. Consequently, the Veteran is not considered to have experienced incapacitating episodes prior to May 13, 2018. The Board thus finds that a compensable initial rating prior to May 13, 2018 is not warranted and the Veteran's eye condition is properly rated in conjunction with his DMII rating. The probative evidence of record, including the March 2020 VA examination and subsequent addendum opinion, and post-service VA treatment records, do not reflect corrected distance vision of 20/50 in one eye and 20/40 in the other eye. On the contrary, the medical evidence reflects corrected distance vision measuring no worse than 20/40 in each eye, which correlates to a noncompensable rating based on impairment of visual acuity. The Board has considered whether a higher rating or any additional ratings are warranted under an alternative diagnostic code but finds that there is no indication that the Veteran has a visual field defect, impairment of muscle function, or incapacitating episodes (under the definition in place prior to May 13, 2018) to warrant any higher or additional ratings. Here, the Veteran's bilateral eye disability is manifested by corrected distance vision of 20/40 or better in the right eye and 20/40 or better in the left eye, which warrants a noncompensable rating under DC 6066. As the Veteran's bilateral eye disability is not productive of any visual impairment or incapacitating episodes prior to May 13, 2018, the currently assigned noncompensable initial rating is appropriate. The Board acknowledges the Veteran's assertions that his eye condition is more severe than the assigned disability rating reflects, particularly prior to May 13, 2018. He is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the competent medical evidence offering specific specialized determinations relevant to the rating criteria are the most probative evidence regarding evaluating the pertinent symptoms of his bilateral eye disability. Many, if not most or indeed all, of the rating criteria consider the results of objective clinical testing, evaluation, and observation not instead mere lay opinion. 38 C.F.R. § 3.159(a)(1) and (2). In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran's claim for a separate compensable initial rating for right eye macular edema, bilateral diabetic retinopathy, and bilateral cataracts prior to May 13, 2018, the claim must be denied. In denying this additional rating, the Board finds that the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. With the changed definition of incapacitating episodes, however, the Board finds assignment of a separate 60 percent rating warranted beginning the earlier date of May 13, 2018, as this is the earliest possible date the rating can be assigned based on incapacitating episodes under the current iteration of the rating criteria. KEITH W. ALLEN 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.