Citation Nr: 21005662 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-02 852 DATE: February 2, 2021 ORDER Entitlement to a rating higher than 10 percent from October 1, 2016, higher than 40 percent from December 13, 2019, and higher than 60 percent from September 16, 2020, for bilateral glaucoma, left eye cataract and right eye intraocular lens is denied. Entitlement to special monthly compensation (SMC) based on blindness in one eye under 38 U.S.C. § 1114 (k) and 38 C.F.R. § 3.350 (a) is granted. FINDINGS OF FACT 1. Prior to December 13, 2019, the Veteran’s eye disability required the use of continuous medication; the evidence does not show decreased visual acuity or contraction of visual fields with average remaining fields less than 60 degrees. 2. Between December 13, 2019, and September 16, 2020, the Veteran’s eye disability manifested in no worse than visual acuity of 20/50 in the right eye and 20/70 in the left eye; with contraction of a visual field with average remaining field of 41 degrees in the right eye and 34 degrees in the left eye. 3. As of September 16, 2020, the Veteran’s eye disability manifested in no worse than normal visual acuity; with contraction of visual field with average remaining field of 30 degrees in the right eye and less than 5 degrees in the left eye. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent from October 1, 2016, higher than 40 percent from December 13, 2019, and higher than 60 percent from September 16, 2020, for bilateral glaucoma, left eye cataract and right eye intraocular lens have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, DC 6027, 6013, 6066, 6080. 2. The criteria for special monthly compensation based on blindness of one eye with a remaining visual field of less than 5 degrees are met. 38 U.S.C. §§ 1114 (k), 5103, 5103A; 38 C.F.R. §§ 3.159, 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1959 to April 1960, from January 1962 to August 1962, and from November 1963 to March 1968. This matter is before the Board on appeal from a July 2016 rating decision of a Department of Veterans Affairs Regional Office. The Veteran testified before the undersigned at a May 2019 hearing. A transcript of that hearing is of record. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that the symptoms of bilateral glaucoma, left eye cataract and right eye interocular lens (hereinafter “eye disability”) warrant higher ratings throughout the appeal period. The Veteran’s eye disability has been rated under DC 6013 for open-angle glaucoma and assigned a 10 percent rating from October 1, 2016; a 40 percent rating from December 13, 2019; and a 60 percent rating from September 16, 2020. The Veteran’s asymptomatic cataracts/intraocular lens are rated with his glaucoma. 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. 15316 (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. Both the former and revised criteria indicate that a minimum 10 percent rating was warranted if continuous medication was required. Under the former criteria, DC 6013 instructed to evaluate pursuant to visual impairment due to open-angle glaucoma. Under the revised criteria, DC 6013 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formal 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. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. 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). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. 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. 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). 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 the poorer eye is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Where the visual acuity in 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. Evaluation of visual field is based on the remaining field of vision in each eye. Under DC 6080, a 10 percent rating is warranted for unilateral concentric contraction of the visual field with remaining field of 16 to 60 degrees; bilateral contraction of the visual field with remaining field of 46 to 60 degrees; or the unilateral loss of the temporal half, nasal half, inferior half, or superior half of visual field. A 20 percent rating is warranted for unilateral concentric contraction of the visual field with remaining visual field of 6 to 15 degrees. A 30 percent is warranted for unilateral concentric contraction of the visual field with remaining visual field of 5 degrees; or bilateral contraction of the visual field with remaining field of 31 to 45 degrees. Normal visual field extant at eight principle meridians is as follows: temporally is 85 degrees, down temporally is 85 degrees, down is 65 degrees, down nasally is 50 degrees, up nasally is 55 degrees, up is 45 degrees, and up temporally is 55 degrees. 38 C.F.R. § 4.76a, Table III. The extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. 38 C.F.R. § 4.77 (a). The degrees lost are then added together to determine total degrees lost. The sum is divided by eight and represents the average contraction of the visual field. At an August 2015 VA examination, the examiner diagnosed bilateral cataracts and bilateral open-angle glaucoma, requiring continuous medication. The Veteran’s corrected distance vision was 20/40 in both eyes. Both irises showed laser peripheral iridotomy. The lenses had nuclear sclerosis. Internal examination found enlarged cup to disc ratios. The examiner found a mild visual field defect in the form of a contraction of the visual fields with average remaining field of 61 degrees in the right eye and 64 degrees in the left eye. This was caused by the glaucoma. There was no loss of visual fields noted. There was no scarring or disfigurement found. The examiner found no incapacitating episodes or functional impact caused by the eye disability. At a February 2018 VA examination, the examiner diagnosed bilateral cataracts, bilateral ptosis and bilateral open-angle glaucoma requiring continuous medication. The Veteran’s corrected distance vision was 20/40 in both eyes. The left eye had a nuclear cataract and the right eye had an intraocular lens. Internal examination found glaucomatous large cupping of the discs and epiretinal membranes on the left macula. The Veteran had constriction of the visual fields with average remaining fields of 58 degrees in the right eye and 59 degrees in the left eye. There was no loss of visual fields noted. The examiner found no scarring or disfigurement and no incapacitating episodes. There was no functional impact noted. A May 2018 VA medical record indicates corrected distance vision of 20/50 bilaterally. Records before and after indicate that the Veteran’s visual acuity remained normal, at 20/40 or better. At a December 2019 VA examination, the Veteran complained of blurry vision even while wearing glasses. He stated he had reduced peripheral vision making it difficult to perform normal life activities. His corrected distance vision was 20/50 in the right eye and 20/70 in the left eye. External examination found superficial punctate keratitis on the cornea, bilaterally, laser peripheral iridotomy on the irises. The right lens had an intraocular lens and the left lens had a nuclear sclerotic cataract. The Veteran’s decrease in visual acuity was attributed to the lens condition. The examiner found a contraction of visual fields with average remaining field of 41 degrees in the right eye and 34 degrees in the left eye. The examiner also noted loss of the inferior nasal field in the right eye and loss of the inferior and superior nasal field in the left eye. There was no scarring or disfigurement or evidence of incapacitating episodes. Regarding functional impact, the examiner noted that the Veteran had difficulty reading up close, and was limited by reduced peripheral vision, sometimes causing falls, and making it unsafe to drive. The lack of peripheral vision also limited the Veteran’s hobbies and teaching bible study classes. A March 2020 VA medical record found normal visual acuity, but constriction of visual fields to the central 20-degree diameter bilaterally. At a September 2020 VA examination, the Veteran reported reduced peripheral vision making normal activities difficult, and blurred vision due to cataracts. On examination, his corrected distance vision was 20/40 in both eyes. There was laser peripheral iridotomy on the irises, intraocular lens on the right lens and nuclear sclerotic cataract on the left lens. Internal examination found a large cup to disc ratio. Examination found a contraction of visual fields with an average remaining field of 30 degrees in the right eye and 0 degrees in the left eye. The examiner noted loss of all the visual fields in the left eye and loss of the nasal half of the visual field in the right eye. The Veteran was found to be legally blind based on visual field loss in the left eye, due to glaucoma. There was no scarring or disfigurement or evidence of incapacitating episodes. Regarding functional impact, the examiner noted that the Veteran’s reduced peripheral vision made regular tasks like driving and moving around unfamiliar environments potentially unsafe. Other than those specified above, VA and private medical records are consistent with VA examination reports, showing a history of open-angle glaucoma with progressive deterioration of peripheral vision, and bilateral cataracts impacting visual acuity. After review of the record, the Board finds that the preponderance of the evidence is against a finding that an increased rating is warranted at any time during the appeal period. Between October 1, 2016, and December 13, 2019, the evidence indicates the Veteran’s eye disability manifested in normal visual acuity and minimal visual field defect. The Board finds that the May 2018 finding of 20/50 visual acuity bilaterally was an anomaly (outlier) during this period, as no other medical record found reduced visual acuity. Average remaining field found at both VA examinations during this period was above 60, which is noncompensable under the rating criteria. The Veteran’s glaucoma required the continuous use of medication for treatment, which warrants a minimum 10 percent rating under DC 6013. In the absence of any decrease in visual acuity or other visual impairment, a rating higher than 10 percent during this period is not warranted. From December 13, 2019, the evidence indicates that the Veteran’s eye disability began manifesting in reduced visual acuity and further reduction of visual fields. At the December 2019 VA examination, visual acuity of 20/50 and 20/70 was found, warranting a 20 percent rating under the rating criteria. The Veteran had bilateral average remaining fields between 31 and 45 degrees, warranting a 30 percent rating under the rating criteria. Combining the 20 percent rating for decrease visual acuity with the 30 percent rating for reduction in visual field pursuant to 38 C.F.R. § 4.25 results in a combined rating of 40 percent for the eye disability. VA and private medical records during this time do not show findings worse than those reflected in the VA examination report, nor evidence of similar findings prior to the VA examination report. Therefore, a rating higher than 40 percent is not warranted during this period. Beginning September 16, 2020, the record indicates that the Veteran’s visual fields had deteriorated further. Visual acuity at the September 2020 VA examination and in contemporaneous VA medical records show normal visual acuity. Regarding visual fields, the evidence shows a contraction of visual fields with average remaining field of 30 degrees in the right eye and 0 degrees in the left eye. This corresponds to complete loss of visual fields in the left eye. Under the rating criteria, unilateral contraction with remaining field of 30 degrees warrants a 10 percent rating, or to be rated as 20/100. Contraction with remaining field less than 5 degrees warrants a 30 percent rating, or to be rated as 5/200. Rating the eyes according to the corresponding visual acuities listed (5/200 and 20/100) yields a 60 percent rating under the criteria. In the absence of evidence showing decreased visual acuity or impaired visual fields worse than that reflected in the VA examination report, a rating higher than 60 percent is not warranted during this period. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a higher rating is warranted at any time during the appeal period. The claim for increased ratings must be denied. However, in light of the findings of legal blindness based on visual field defect, specifically contraction with remaining field of less than 5 degrees, and the evidence indicating that the loss of the Veteran’s peripheral vision inhibits his ability to perform daily activities, such as drive and move around freely, the Board finds that a separate rating under Special Monthly Compensation for loss of use of one eye is granted as of September 16, 2020, or the date on which the record shows the loss of use. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350 (a). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.