Citation Nr: 21076295 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 19-38 352 DATE: December 23, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral pterygium is denied. FINDING OF FACT 1. The Veteran's bilateral pterygium does not manifest in a decrease in visual acuity, other visual impairment, nor disfigurement. 2. The Veteran's impairment of visual acuity and other visual impairments are due to his non-service-connected cataracts. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral pterygium have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6013, Diagnostic Code 6018, Diagnostic Code 6066, Diagnostic Code 6080, Diagnostic Code 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training in the Mississippi Army National Guard from May 1964 until his honorable discharge in October 1964. Subsequently, the Veteran served on active duty in the United States Navy from February 1965 until his honorable discharge in February 1967. The Veteran died in July 2020, and the appellant is the Veteran's surviving spouse, who has been appropriately substituted in this matter. This matter come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). Increased Rating 1. Bilateral pterygium The appellant asserts that the Veteran is entitled to a compensable disability rating for his bilateral pterygium. As a preliminary matter, the Board notes that the Veteran had several eye disabilities, including but not limited to age-related nuclear cataracts, regular bilateral astigmatism, presbyopia, bilateral hypermetropia, bilateral pterygium, and essential (primary) hypertension. Of these eye disabilities, only the Veteran's bilateral pterygium has been service connected. Next, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted. The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code). The Veteran is currently assigned a noncompensable disability rating under Diagnostic Code 6066 for his service-connected bilateral pterygium. Diagnostic Code 6066 provides disability ratings for impairment of visual acuity. Accordingly, the Veteran is currently being rated for impairment of visual acuity. However, a June 2019 VA examination demonstrated that the Veteran's bilateral pterygium was not the source of the Veteran's impairment of visual acuity. In contrast, the Veteran's nonservice-connected cataracts were the cause of the Veteran's impairment to his visual acuity. Therefore, the Board finds that a rating under Diagnostic Code 6066 is not the appropriate Diagnostic Code to rate the Veteran's disability. The evidence does show that the Veteran was diagnosed with bilateral pterygium. As such, the Board finds that a rating under Diagnostic Code 6034 for pterygium is the more appropriate Diagnostic Code. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 6034. The Board further notes that the Veteran's current disability has been rated under Diagnostic Code 6066 for approximately 15 years and is afforded protection under 38 U.S.C. § 1159. However, the Board finds that a change in the Diagnostic Code will not result in a reduction of the current disability rating or severance of service connection. Therefore, the Board finds that a change in the Diagnostic Code does not violate the Veteran's rights under 38 U.S.C. § 1159. Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. §§ 4.76(a), 4.79. The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found. 38 C.F.R. § 4.76(b). Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Id. Unless medically contraindicated, the fundus must be examined with the Veteran's pupils dilated. Id. Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009. Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066. Impairment of Visual Fields is rated under Diagnostic Codes 6080 through 6081. Impairment of Muscle Function is rated under Diagnostic Codes 6090 through 6091. The Veteran's bilateral pterygium is rated under 38 C.F.R. § 4.79, Diagnostic Code 6034. Under Diagnostic Code 6034, unilateral or bilateral pterygium is evaluated under the General Rating Formula for Diseases of the Eye, disfigurement (Diagnostic Code 7800), (chronic) conjunctivitis (Diagnostic Code 6018), etc., depending on the particular findings, and combine in accordance with 38 U.S.C. § 4.25. 38 C.F.R. § 4.79, Diagnostic Code 6034. Under Diagnostic Code 6018, chronic conjunctivitis (nontrachomatous) that is active is evaluated under the General Rating Formula for Diseases of the Eye and inactive is evaluated based on residuals, such as visual impairment and disfigurement (Diagnostic Code 7800). Diagnostic Code 7800 provides that burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck with at least one characteristic of disfigurement are compensable. Diagnostic Code 7800 (Note 1) provides for the 8 characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are: (1) scar 5 or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of the scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (30 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (30 square centimeters); and (8) skin indurated and inflexible in an area exceeding six square inches (30 square centimeters). However, the Board notes that the Veteran was not diagnosed with chronic trachomatous nor chronic conjunctivitis. See June 2019 VA examination, p. 11, Section 4(a). Furthermore, the Veteran was not diagnosed with disfigurement due to his service-connected bilateral pterygium. See June 2019 VA examination, p. 15, Section V(1). Therefore, the Veteran's bilateral pterygium shall be evaluated under the General Rating Formula for Diseases of the Eye. During the pendency of the Veteran's appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address the organics of special sense and schedule of ratings-eye. 83 Fed. Reg. 15316 (April 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. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) Under both the former and revised criteria, a 10 percent disability rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. Both versions of the criteria also provide for an alternative basis for the evaluation if it results in a higher disability rating. Under the former criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate the disability based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. Prior to the May 13, 2018 changes, the criteria under the General Rating Formula for Diseases of the Eye 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. 38 C.F.R. § 4.79. 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 disability 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 disability 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 disability rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent disability 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. Id. From May 13, 2018; the criteria under the General Rating Formula for Diseases of the Eye 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. 38 C.F.R. § 4.79. Where documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition in the past 12 months, a 10 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 20 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 40 percent disability rating is warranted. Where documented incapacitating episodes requiring 7 or more treatment visits for an eye condition in the past 12 months, during the past 12 months, a 60 percent disability rating is warranted. The Board also notes that the May 2018 changes also included a change to the Note(s) under General Rating Formula for Diagnostic Codes 6000 through 6009. Specifically, prior to the May 2018 changes, the Note provided "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." However, subsequent to the May 2018 changes, there are now three notes under General Rating Formula for Diagnostic Codes 6000 through 6009. Note: (1) provides "For the purposes of evaluation 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) provides "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) provides for the purposes of evaluating visual impairment due to the particular condition, refer to 38 C.F.R. §§ 4.75 through 4.78 and 4.79, Diagnostic Codes 6061-6091. The Board notes that neither the Veteran prior to his death nor the Appellant have asserted, and evidence does not reflect, that the Veteran's service-connected bilateral pterygium has caused incapacitating episodes under the current or prior criteria. Therefore, the Board shall evaluate the Veteran's disability based upon visual impairment(s). Examinations of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen's test type or its equivalent. 38 C.F.R. § 4.76(a). Evaluation of central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76(b). However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. Id. A June 2019 VA examination reveals that the Veteran had bilateral pterygium, a corneal scar of the left eye, bilateral age-related cataracts. 06.03.2019 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/40 20/40 20/100 20/40 LEFT 20/50 20/40 20/100 20/40 The June 2019 VA examination also revealed that the Veteran did not have a documented visual field defect. As noted above, the June 2019 VA examiner noted that the Veteran's bilateral pterygium is not the cause of the Veteran's decreased visual acuity but rather his nonservice-connected cataracts are the cause of his decreased visual acuity. See June 2019 VA examination, p. 11, Section 4(b). Based on the evidence above, a compensable disability rating for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/40 corrected distance bilaterally warrants a noncompensable disability rating, even if it was related to his service-connected bilateral pterygium. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial compensable disability rating for a loss of visual acuity. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, Associate 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.