Citation Nr: 21006871 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-23 353 DATE: February 5, 2021 ORDER An increased disability rating (in excess of 20 percent) for bilateral cataracts with detached retina, right eye is denied. FINDING OF FACT 1. Prior to November 2019, the Veteran’s corrected distance visual acuity is no worse than 20/40 bilaterally; corrected near visual acuity is no worse than 20/70 in the right eye and 20/40 in the left eye; with a visual field defect of 54.375 degrees in the right eye and 54.5 degrees in the left eye. 2. From November 2019, the Veteran’s corrected distance visual acuity is no worse than 20/200 in the right eye and 20/40 in the left eye with no visual field defects. 3. The Veteran’s bilateral cataracts are preoperative. CONCLUSION OF LAW The criteria have not been met for an increased disability rating in excess of 20 percent for bilateral cataracts with detached retina, right eye. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.76A, 4.79, Diagnostic Code 6028, Diagnostic Code 6008. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1965 until his honorable discharge in September 1969. The Veteran also served on active duty in the Tennessee Army National Guard from November 1990 until his honorable discharge in August 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In September 2020, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Muskogee, Oklahoma. A transcript of the hearing has been associated with the record on appeal. In September 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to arrange for a new VA eye examination. In response, in November 2020, the RO obtained a VA eye examination. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue(s) on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. An increased disability rating in excess of 20 percent for bilateral cataracts with detached retina, right eye The Veteran asserts that he is entitled to a higher disability rating. 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. 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. The Veteran is rated under Diagnostic Code 6028-6008. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. The criteria under 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. 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. Diagnostic Code 6027 provides that pre-operative cataracts are to be evaluated under the General Rating Formula for Diseases of the Eye. The Board notes that the Veteran’s cataracts are pre-operative. See November 2020 VA examination, p. 12 of 17. 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. 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. For evaluations of restrictions in visual field(s), the examiner must use either Goldmann kinetic perimetry or automated perimetry using Humphrey Model 750, Octopus Model 101, or later versions of these perimetric devices with simulated kinetic Goldmann testing capability. 38 C.F.R. § 4.77. Determination of the average concentric contraction of the visual field of each eye by measuring the remaining visual field (in degrees) at each of the eight principal meridians 45 degrees apart, adding them, and dividing the sum by eight. 38 C.F.R. § 4.77(b). 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, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.76(3) provides that in any case where the examiner reports that there is a difference equal to two or more scheduled steps between near and distance corrected vision, with the near vision being worse, the examination report must include at least two recordings of near and distance corrected vision and an explanation of the reason for the difference. In these cases, evaluate based on corrected distance vision adjusted to one step poorer than measured. A September 2018 VA examination reveals that the Veteran had the following visual impairment. 09.15.2018 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 5/200 or worse 20/40 20/200 20/70 LEFT 5/200 or worse 20/40 20/100 20/40 The September 2018 VA examination also revealed that the Veteran has a documented visual field defect. Normal Right Left Up 45 33 31 Up Temporally 55 55 45 Temporally 85 72 85 Down Temporally 85 70 75 Down 65 50 40 Down Nasally 50 50 50 Nasally 60 60 60 Up Nasally 55 45 50 The Veteran’s average concentric contraction of the visual field of each eye results in a right eye contraction of 54.375 degrees and left eye contraction of 54.5 degrees. Based on the evidence above, a rating in excess of 20 percent for the Veteran’s loss of visual acuity and visual field is not warranted. The Veteran’s visual acuity of 20/40 corrected distance bilaterally warrants a non-compensable disability rating. The Veteran’s visual acuity of 20/40 corrected distance bilaterally warrants a non-compensable disability rating. However, under 38 C.F.R. § 4.76(3), the Board must evaluate based on corrected distance vision adjusted to one step poorer than measured, which would result in a visual acuity of 20/50 corrected distance bilaterally and warrant a 10 percent disability rating. Additionally, the Veteran’s average contraction of the visual field of 54.375 degrees in the right eye and 54.5 degrees in the left eye warrants a 10 percent disability rating. Combining the Veteran’s results for visual acuity disability rating of 10 percent disabling and contraction of visual field disability rating of 10 percent results in a combined disability rating of 20 percent disabling. Based on the evidence above, a disability rating in excess of 20 percent for the Veteran’s loss of visual acuity is not warranted. A November 2019 VA examination reveals that the Veteran had the following visual impairment. 11.13.2020 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 5/200 or worse 20/200 20/200 20/70 LEFT 5/200 or worse 20/40 20/200 20/50 The November 2019 VA examination also revealed that the Veteran no longer has a documented visual field defect. Based on the evidence above, a disability rating in excess of 20 percent for the Veteran’s loss of visual acuity is not warranted. The Veteran’s visual acuity of 20/200 corrected distance in the right eye and 20/40 corrected distance in the left eye warrants a 20 percent disability rating. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 20 percent 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). VICTORIA MOSHIASHWILI 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.