Citation Nr: 21009358 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-64 305 DATE: February 22, 2021 ORDER An increased rating greater than 70 percent for the service-connected chronic granulomatous uveitis with corneal scarring of both eyes and pseudophakia of the left eye, prior to January 31, 2020, is denied. An increased rating of 90 percent for the service-connected enucleation of right eye, chronic granulomatous uveitis with corneal scarring of both eyes, and pseudophakia of the left eye, as of January 31, 2020, is granted. FINDINGS OF FACT 1. Prior to January 31, 2020, the Veteran’s visual disorder was manifested by no more than light perception with visual field loss in the right eye and by visual acuity of 20/70 and an average remaining field of 49 degrees in the left eye. 2. As of January 31, 2020, the Veteran’s visual disorder has been manifested by anatomical loss of, and loss of visual field, in the right eye—by visual acuity of 20/200 with an average remaining field of 50 degrees, in the left eye. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 70 percent for chronic granulomatous uveitis with corneal scarring of both eyes, and pseudophakia of the left eye, prior to January 31, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6000-6064, 6063. 2. The criteria for a 90 percent rating, but no higher, for enucleation of right eye, chronic granulomatous uveitis with corneal scarring of both eyes, and pseudophakia of the left eye, as of January 31, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, DC 6000-6063. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. This current matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a June 2019 hearing. A transcript of that hearing is of record. In August 2019, the Board remanded this appeal for further development, including obtaining a new VA examination. The Board finds substantial compliance with the prior remand directives. The Veteran contends that the symptoms of bilateral chronic granulomatous uveitis with corneal scarring, left eye pseudophakia, and subsequent right eye enucleation (herein after “eye disability”) warrants a higher rating. The Veteran has been assigned a 70 percent rating prior to January 31, 2020, under DC 6000-6064, which rates the uveitis on the basis of visual acuity. In a January 2021 brief, the Veteran’s representative argued a 100 percent rating is warranted for the loss of the Veteran’s right eye combined with poor vision in the remaining left eye. 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. Under the former criteria, DC 6000 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. Under the revised criteria, DC 6000 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. Both the General Rating Formal for Diagnostic Codes 6000 through 6009 and for Diseases of the Eye instruct to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. There is no evidence, nor has the Veteran argued, that any incapacitating episodes are experienced due to the eye disability. 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). The amendments made no substantive changes to how visual acuity or visual fields are rated. 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 6064 provides ratings where there is no more than light perception in the poorer eye: a 30 percent rating is warranted where the visual acuity in the other eye is 20/40; a 40 percent rating is warranted where the visual acuity in the other eye is 20/50; a 50 percent rating is warranted where the visual acuity in the other eye is 20/70; a 60 percent rating is warranted where visual acuity in the other eye is 20/100; a 70 percent rating is warranted where visual acuity in the other eye is 20/200; an 80 percent rating is warranted where visual acuity in the other eye is 15/200; a 90 percent rating is warranted where visual acuity in the other eye is 10/200; and finally a 100 percent rating is warranted where visual acuity in the other eye is 5/200. DC 6063 provides ratings where there is anatomical loss of one eye: a 40 percent rating is warranted where the visual acuity in the other eye is 20/40; a 50 percent rating is warranted where the visual acuity in the other eye is 20/50; a 60 percent rating is warranted where the visual acuity in the other eye is either 20/70 or 20/100; a 70 percent rating is warranted where visual acuity in the other eye is 20/200; an 80 percent rating is warranted where visual acuity in the other eye is 15/200; a 90 percent rating is warranted where visual acuity in the other eye is 10/200; and finally a 100 percent rating is warranted where visual acuity in the other eye is 5/200. 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; 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. 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. 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 defects (expressed as a level of visual acuity) are evaluated separately, and then combined under the provisions of § 4.25. 38 C.F.R. § 4.77(c). Here, in an April 2017 statement, the Veteran’s private eye doctor stated that the Veteran was blind with no light perception in the right eye and with suboptimal vision in the left eye of 20/80. At a June 2017 VA examination, the Veteran’s corrected distance vision was no more than light perception in the right eye, and 20/70 in the left eye. Corrected near vision in the left eye was also 20/70. Examination of the cornea found diffuse haze and edema in the right eye and mild haze in the left eye. Visual field testing found total loss of the visual field in the right eye, and contraction of the visual field with average remaining field of 49 degrees in the left eye. The examiner found that the Veteran’s decreased visual acuity and visual field impairment were attributable to the corneal scarring and old granulomatous uveitis. The examiner also noted epithelial and stromal scarring of the cornea, greater in the right eye than the left eye, the surface contour of which was elevated or depressed on palpation. The examiner did not find that the Veteran experienced incapacitating episodes due to the eye disability. Functional impact was found in the form of no vision in the right eye and limited vision in the left eye with no depth perception. VA and private medical records between August 2017 and May 2019 indicate blindness in the right eye with vision in the left eye of between 20/50 and 20/70. In April 2018, the Veteran underwent enucleation of the right eye after an increase in pressure in the eye led to glaucoma and pain. At a January 2020 VA examination, the examiner noted a right eye prosthesis, with uveitis, corneal scarring, pseudophakia and posterior capsular opacification of the left eye, all related to the service-connected eye disability. The Veteran’s corrected distance vision in the left eye was 20/200, and corrected near vision was 10/200. As the Veteran had anatomical loss with visual acuity of 20/200 or worse in the remaining eye, the examiner noted he qualified for legal blindness. Examination of the left cornea found scarring, haze and interstitial keratitis. There were old keratic precipitates found on the left anterior chamber. Visual field testing found complete loss of the visual field in the right eye, with a contraction of the visual field with average remaining field of 50 degrees in the left eye. The left eye scar was measured as 7 cm by 1 cm, and was not painful or unstable. The examiner found functional impact as being monocular with legal blindness in the remaining eye, causing the Veteran to ambulate with a cane, and leaving him unable to drive, read even large print or use the computer. An April 2020 VA medical record indicated visual acuity in the left eye of 20/70 up to, and including, 20/190. After review of the record, the Board finds that a 90 percent rating, but no higher, is warranted as of January 31, 2020, the date of the most recent VA examination and the first evidence of record indicating a reduction of visual acuity in the left eye to 20/200. Anatomical loss of one eye with visual acuity in the other eye of 20/200 warrants a 70 percent rating under DC 6063. However, where there is a difference of two or more lines on the Snellen chart between corrected distance and near vision in an eye, with the near vision being worse, best corrected distance vision is adjusted to one step poorer than measured for rating purposes. Therefore, the Veteran’s left eye should be rated as 15/200, yielding an 80 percent rating under DC 6063 for the Veteran’s visual acuity. With the total loss of visual field in the right eye, or average remaining field less than 5 degrees, the Veteran’s right eye warrants a 30 percent rating, while the left eye warrants a 10 percent rating. Combined, the disability warrants a 40 percent rating based on visual fields. When ratings for both decreased visual acuity and impaired visual field are combined pursuant to 38 C.F.R. § 4.77(c), the result is a 90 percent rating as of January 31, 2020, for this visual disorder. The Board acknowledges that the Veteran’s representative has argued that the loss of the right eye combined with visual acuity in the left eye should result in a 100 percent rating for the Veteran. The Board notes, however, that in its argument, the representative contended that the Veteran’s left eye had a visual acuity of 5/200. There is no evidence of record indicating that the Veteran’s left eye has a visual acuity of 5/200. Thus, a 100 percent rating is not warranted. Prior to January 31, 2020, the preponderance of the evidence is against a finding that a rating higher than 70 percent is warranted for the Veteran’s visual disorder. While the Veteran underwent right eye enucleation in April 2018, the evidence indicates that his left eye visual acuity remained no worse than 20/70 until findings on the January 2020 VA examination. Indeed, even at the June 2019 hearing before the Board, the Veteran testified that he was told that his left eye acuity was 20/60. Visual acuity prior to January 31, 2020, warrants a 50 percent rating for no more than light perception or anatomical loss in one eye combined with an acuity of no worse than 20/70 in the other eye. Visual field findings prior to January 31, 2020, warrant a 40 percent rating, for and average remaining field of 49 degrees in the left eye (10 percent) combined with complete loss or less than 5 degrees in the right eye (30 percent). When ratings for both decreased visual acuity and visual fields are combined for the period prior to January 31, 2020, the result is a 70 percent rating. The evidence of record does not show that the Veteran’s visual acuity was worse than 20/70 during this time—nor is there evidence of a visual field defect worse than that reflected in the VA examination reports. Therefore, a rating higher than 70 percent is not warranted prior to January 31, 2020. Accordingly, the Board finds that a 90 percent rating is warranted as of January 31, 2020, for the Veteran’s service-connected visual disorder but that the preponderance of the evidence is against a finding that a rating higher than 70 percent is warranted prior to January 31, 2020; or that a rating higher than 90 percent is warranted from January 31, 2020. THERESA M. CATINO 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.