Citation Nr: 21074605 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-35 744 DATE: December 15, 2021 ORDER An effective date earlier than August 8, 2016, for grant of service connection for cataract is denied. A compensable initial rating for cataract is denied. REMANDED Service connection for a right hand condition is remanded. Service connection for a right knee condition is remanded. Service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The Veteran's intent to file was received August 8, 2016; there was no earlier formal or informal claim of service connection for cataract. 2. The Veteran's cataracts manifest as decreased visual acuity correctable to 20/40 or better in both eyes, no muscle function impairment, no visual field defect, and no incapacitating episodes attributable to an eye condition. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 8, 2016, for grant of service connection for cataract have not been met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for a compensable initial rating for cataract have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6027-6066. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 25, 1982, to April 27, 1982, and from November 1990 to May 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. An effective date earlier than August 8, 2016, for grant of service connection for cataract The Veteran was granted service connection for cataract in the September 2018 rating decision on appeal. At that time, this disability was assigned a noncompensable (0 percent) rating effective August 8, 2016. The Veteran has appealed that effective date. Unless specifically provided otherwise in Chapter 51 of Title 38 of the U.S. Code, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). Generally, the effective date of an award of service connection is the date of separation from service if the claim is received within one year of separation; otherwise, the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2). The Veteran last separated from active duty service in May 1991 and there is no evidence of record regarding and eye disability within one year of that date. The Veteran's intent to file was received by VA on August 8, 2016. This is the basis for the current effective date. The record does not contain an earlier formal claim or any earlier references to an eye condition that could be construed as an informal claim. The Board notes that this disability has been linked to the Veteran's traumatic brain injury (TBI) and has therefore considered whether earlier evidence related to that claim could give rise to an earlier effective date. In this case, service connection for TBI was awarded in a September 2009 rating decision. Development of that claim included a May 2009 TBI disability benefits questionnaire (DBQ). In the May 2009 TBI DBQ, the Veteran specifically denied visual problems. Therefore, there was no indication that separate service connection for an associated eye disability was warranted. Instead, the first indication that the Veteran was seeking service connection for an eye disability was an August 2016 letter (received in September 2016) stating that she had been told that her current traumatic cataracts may have been caused by her in-service head injury. While the record does include evidence of cataract prior to this claim, such as the July 2016 private eye treatment records, the effective date of a claim of service connection is date of receipt of claim, or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (b)(2). Therefore, the effective date for the grant of service connection for cataract can be no earlier than August 8, 2016, the date the intent to file was received by VA. The appeal must be denied. There is no reasonable doubt to be resolved as to this issue. 2. A compensable initial rating for cataract The Veteran was granted service connection for cataract in the September 2018 rating decision on appeal. At that time, this disability was assigned a noncompensable (0 percent) rating effective August 8, 2016. The Veteran has appealed that initial rating. The Veteran's eye disability is currently rated under hyphenated diagnostic code 6027-6066. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. 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, DC 6027 instructed that preoperative cataracts were to be rated based on impairment of vision and postoperative cataracts were to be rating on impairment of vision if a replacement lens was present and based on aphakia if a replacement lens was not present. 38 C.F.R. § 4.79 (2016). DC 6029 provided a 30 percent minimum rating for aphakia or dislocation of the crystalline lens and instructed that the evaluation should be based on visual impairment with a one-step elevation. Id. Under the revised criteria, DC 6027 instructs the rater to evaluate preoperative cataract or postoperative cataract with a replacement len (pseudophakia) under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79. Postoperative cataract without a replacement lens (aphakia) is evaluated under DC 6029 based on visual impairment with the resulting level of impairment elevated up one step and a minimum rating of 30 percent for unilateral or bilateral aphakia. See id. Similarly, under the current diagnostic code (DC 6040), diabetic retinopathy is rated under the General Rating Formula for Diseases of the Eye. See id. The revised criteria's 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. § 4.75-4.78 and to § 4.79, DCs 6061-6091. 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 6061-6066 based on the best corrected distance vision. 38 C.F.R. §§ 4.76, 4.79. Impairment of visual fields are rated under DC 6080-6081 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 DC 6090-6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.78, 4.79. A July 2017 private treatment record notes moderate bilateral blurring, glasses helped. The Veteran's uncorrected distance vision was 20/25 in the right eye and 20/20 in the left, corrected to 20/20 bilaterally. Her uncorrected near vision was 20/40 bilaterally, again corrected to 20/20 bilaterally. She was diagnosed with myopia, presbyopia, and cortical age-related cataracts. VA treatment records shows that her conjunctivae were not injected, her pupils equal in size and symmetric, and there was no ptosis. The Veteran was noted to wear eyeglasses. The September 2017 eye conditions disability benefits questionnaire (DBQ) shows bilateral cataracts. The Veteran's distance vision was 20/40 or better bilaterally with and without correction. Her near vision was 20/100 bilaterally, corrected to 20/40 or better. Her pupils were round and reactive to light. No afferent pupillary defect was present. She did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. She did not have a corneal irregularity that resulted in severe astigmatism. She did not have diplopia. An external eye exam noted cataracts bilaterally. Results of an internal eye exam were normal bilaterally. She did not have a visual field defect. Her bilateral preoperative cataracts caused her decrease in vision. There was no aphakia or dislocation of the crystalline lens in either eye. She did not have associated scarring or any other pertinent physical findings, complications, conditions, or symptoms. In the prior twelve months, the Veteran had not had any incapacitating episodes attributable to any eye condition. Her eye conditions did not impact her ability to work. The February 2019 eye conditions DBQ again found bilateral cataracts. The Veteran's uncorrected distance vision was 20/40 bilaterally, corrected to 20/20 or better in the right eye and 20/40 in the left eye. Her uncorrected near vision was 20/200 bilaterally, corrected to 20/20 or better in the right eye and 20/40 in the left eye. Her pupils were round and reactive to light. No afferent pupillary defect was present. She did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. She did not have a corneal irregularity that resulted in severe astigmatism. She did not have diplopia. An external eye exam noted cataracts bilaterally. Results of an internal eye exam were normal bilaterally. She did not have a visual field defect. Her bilateral preoperative cataracts caused her decrease in visual acuity and interference with daily living. There was no aphakia or dislocation of the crystalline lens in either eye. She did not have associated scarring or any other pertinent physical findings, complications, conditions, or symptoms. In the prior twelve months, the Veteran had not had any incapacitating episodes attributable to any eye condition. Her eye conditions did not impact her ability to work. In an August 2021 letter, the Veteran's daughter stated that the Veteran had blurred vision associated with headaches. Based on the above, the Veteran's preoperative cataracts do not warrant a compensable rating. She has not undergone cataract surgery in either eye, therefore her disability rating is based on the degree of visual impairment. See 38 C.F.R. § 4.79, DC 6029 (2016); 38 C.F.R. § 4.79, DC 6029 (2021). In this case, the Veteran's current eye symptoms are limited to decreased visual acuity correctable to 20/40 or better in both eyes, which is not a compensable degree of impaired visual acuity. 38 C.F.R. § 4.79, DC 6066 (2016); 38 C.F.R. § 4.79, DC 6066 (2021). Moreover, she does not have impaired muscle function or a visual field defect and has not had any incapacitating episodes attributable to an eye condition. As such, a compensable rating for cataract is not warranted and this appeal must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. Service connection for a right hand condition is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a right hand condition because no VA examiner has opined whether her current right hand complaints, including arthritis and carpal tunnel syndrome, are causally linked to her documented in-service right hand injury in June 1989 following a fall from a truck. 2. Service connection for a right knee condition is remanded. 3. Service connection for a left knee condition is remanded. Similarly, the Board cannot make a fully informed decision on the issue of service connection for a right and left knee condition because no VA examiner has opined whether her current knee complaints are causally linked to her in-service fall from a truck in June 1989. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for her right hand condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any right hand condition, to include arthritis and carpal tunnel syndrome, at least as likely as not related to service, including the right hand injury following a June 1989 fall from a truck? Provide a rationale to support the opinion(s). 2. Schedule the Veteran for a VA examination for her right and left knee conditions. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any right and/or left knee condition at least as likely as not related to service, including the June 1989 fall from a truck? Provide a rationale to support the opinion(s). 3. Finally, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, then furnish the Veteran and her attorney with a supplemental statement of the case and allow them an opportunity to respond. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Houbeck 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.