Citation Nr: 21074972 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-43 726 DATE: December 16, 2021 ORDER An initial rating higher than 30 percent for right eye retinal detachment is denied. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran's left eye was not service-connected. 2. The Veteran does not have visual acuity of 20/200 or less in both eyes or peripheral field of vision to 20 degrees or less in both eyes; he does not have anatomical loss of the right eye. CONCLUSION OF LAW The criteria for a rating higher than 30 percent for right eye retinal detachment have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6008-6064. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in September 2021. A transcript of the hearing is associated with the claims file. 1. An initial rating higher than 30 percent for right eye retinal detachment The Veteran was originally granted service connection for right eye retinal detachment in the July 2017 rating decision on appeal. At that time, he was awarded a 30 percent rating effective March 1, 2017. He has appealed that initial rating. The Veteran's right eye retinal detachment is currently rated under hyphenated diagnostic code (DC) 6008-6064. 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. DC 6008 provides rating criteria for detachment of retina and DC 6064 provides rating criteria for impaired visual acuity with the worse eye having no more than light perception. 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, the General Rating Formula for Diagnostic Codes 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. Under the revised criteria, the 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. When only one eye is service-connected, the other eye considered 20/40 for rating purposes regardless of the actual level of impairment. 38 C.F.R. § 4.75 (c). Generally, the maximum evaluation for visual impairment of one eye is 30 percent unless there is anatomical loss of one eye. 38 C.F.R. § 4.75 (d). The exception to this is the paired organ rule which allows severe bilateral visual impairment to be rated as if both eyes were service connected. See 38 C.F.R. § 3.383 (a)(1). "Severe bilateral vision impairment" is visual acuity of 20/200 or less in both eyes of peripheral field of vision to 20 degrees or less in both eyes. See id. The May 2017 eye conditions disability benefits questionnaire (DBQ) notes right eye retinal detachment, bilateral preoperative cataracts, and bilateral primary open angle glaucoma. His right eye visual acuity was correctable 5/200 or worse in both distance and near. His left eye visual acuity was 10/200 for distance, correctable to 20/40 or better for both distance and near vision. His pupils were round and reactive to light. There was no afferent pupillary defect. The Veteran did not have anatomical loss of either eye. His right eye visual acuity was limited to perceiving objects, hand movements, or finger count at three feet, but he was unable to recognize test letters with his right eye at one foot or closer. He did not have a corneal irregularity that resulted in severe irregular astigmatism. He did not have diplopia. He had bilateral cataracts, bilateral myopic degeneration, and repaired retinal detachment in the right eye. He had a documented visual field defect with full loss of the right eye visual field. He had a left eye scotoma. The accompanying visual field perimeter chart does not show limitation to 20 degrees or less at any meridian of the Veteran's left eye, much less average concentric contraction of 20 degrees or less in that eye. This examiner noted that the Veteran did not have statutory blindness based on either visual acuity or visual fields. His glaucoma required continuous medication for treatment. His vision loss was attributed to his right eye retinal detachment. He did not have any other eye conditions, pertinent physical findings, complications, conditions, signs, and/or symptoms related to the condition at hand. He did not have any scarring or disfigurement attributable to any eye condition. In the prior 12 months, he had not had any incapacitating episodes attributable to any eye condition. The Veteran testified at his September 2021 hearing that the May 2017 examination was not good because the Veteran was rude to him, busy, and incorrectly stated that the Veteran could see out of his right eye from three feet away. If the examiner was rude during this examination, the Board apologizes. Neither the Board nor VA condone such behavior. However, there is no evidence to support that the examiner was not impartial or that the examination was inadequate, as this examination is consistent with the other evidence of record. Additionally, the Board wants to clarify that the examination report does not say that the Veteran could see at three feet, but rather that he could perceive movement at that distance. This is consistent with a finding of no more than light perception in the right eye. The Board apologizes for the confusion and any distress it may have caused the Veteran. A July 2017 addendum opinion clarified that the Veteran's retinal detachment and glaucoma were distinct diagnoses without correlation. The April 2018 eye conditions DBQ again shows corrected visual acuity of 5/200 in the right eye and 20/40 or better in the left eye for both distance and near vision. His pupils were round and reactive to light. There was an afferent pupillary defect in the right eye. The Veteran did not have anatomical loss of either eye. His right eye visual acuity was limited to light perception only. He did not have a corneal irregularity that resulted in severe irregular astigmatism. He did not have diplopia. He had bilateral cataracts, bilateral peripapillary atrophy, bilateral retinal pigment epithelial changes, and right eye peripheral retinal scarring. His cup-to-disc ratio was .75 in the right eye and .45 in the left eye. He had a documented visual field defect with full loss of the right eye visual field. He had a right eye scotoma. The accompanying visual field perimeter chart does not show limitation to 20 degrees or less at any meridian of the Veteran's left eye, much less average concentric contraction of 20 degrees or less in that eye. This examiner noted that the Veteran did not have statutory blindness based on either visual acuity or visual fields. The Veteran's right eye visual impairment was attributable to his retinal detachment. His left eye visual impairment was attributable to his preoperative cataract and glaucoma. His glaucoma required continuous medication for treatment. The Veteran had dry macular degeneration that did not impact his right eye and was less likely than not affecting his left eye. He did not have any scarring or disfigurement attributable to any eye condition. In the prior 12 months, he had not had any incapacitating episodes attributable to any eye condition. Functionally, the Veteran had only one good eye, so he would have trouble doing any job that required stereo vision such as operating heavy machinery VA treatment records during this period continue to show right eye blindness, but show corrected vision in his left eye of no worse than 20/40. He had an enlarged blind spot in the left eye. A May 2021 private treatment record noted left eye visual acuity of 20/40 and full confrontational visual field. At his September 2021 hearing, the Veteran testified that he may undergo surgery in the future for a left eye cyst and that this surgery could either improve his left eye or render that eye blind as well. As this surgery has not yet been performed, it cannot impact the current disability rating. As noted above, a 30 percent rating is the maximum rating available for a single service-connected eye without anatomical loss. 38 C.F.R. § 4.75 (d). The record does not show anatomical loss of the right eye. The Board notes that at his hearing, the Veteran's representative argued that blindness in his right eye was the equivalent of anatomical loss. This argument is not persuasive as the rating criteria clearly differentiates between the two, with DC 6063 providing criteria for anatomical loss and DC 6064 providing criteria for visual acuity with no more than light perception. While DC 6064 encompasses extreme impairment of visual acuity that still allows for light perception, the inclusion of the phrase "no more than" clarifies that it also includes impairment of visual acuity without light perception. Therefore, the Veteran's argument that blindness is the equivalent of anatomical loss is not persuasive. Additionally, the record does not show visual acuity of 20/200 or less in both eyes or peripheral field of vision to 20 degrees or less in both eyes. While the Veteran's right eye blindness is well established, the visual impairment in his nonservice-connected left eye is significantly less severe. Thus, the paired organ rule does not apply. For these reasons, a rating higher than 30 percent for right eye retinal detachment is denied. JENNIFER HWA 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.