Citation Nr: 21014060 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 11-05 793 DATE: March 11, 2021 ORDER Entitlement to a rating higher than 10 percent for left eye iritis, cornea scar, and incipient cataract related to herpes zoster, is denied. Entitlement to an effective date of May 28, 2009, but not earlier, for a total rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal, the left eye corrected distance measured, at worse, 20/40; the disability has not manifested with any scarring or disfigurement, visual field defect, or incapacitating episodes for total duration of at least two weeks. 2. As of July 13, 2013, there was concentric contraction averaging 60 degrees. 3. As of May 13, 2018, the eye disability did not require at least three treatment visits in a 12 month period. 4. As of May 28, 2009, the evidence is at least in equipoise regarding whether the service-connected disabilities alone preclude the Veteran from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for left eye iritis, cornea scar, and incipient cataract related to herpes zoster 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 Codes 6099-6009. 2. The criteria for TDIU have been met as of May 28, 2009, but not earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to May 1984 and August 1985 to April 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017 and September 2019, the Board remanded the case for further development. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to a rating higher than 10 percent for left eye iritis, cornea scar, and incipient cataract related to herpes zoster 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. 83 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 using both the former and revised schedular rating criteria, although an increased rating based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, Diagnostic Code 6009 instructed to rate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for Diagnostic Codes 6000 through 6009 instructs to rate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher rating. A 10 percent rating is warranted where incapacitating episodes have a total duration of at least one week, but less than two weeks, during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is warranted where incapacitating episodes have a total duration of at least four weeks, but less than six weeks, during the past 12 months. A 60 percent rating is warranted where incapacitating episodes have a total duration of at least six weeks during the past 12 months. Under the revised criteria, Diagnostic Code 6009 instructs the rater to rate pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formal for Diseases of the Eye instructs to rate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher rating. A 10 percent rating is warranted where there are documented incapacitating episodes requiring at least one but less than three 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 three but less than five treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted where there are documented incapacitating episodes requiring at least five but less than seven treatment visits for an eye condition during the past 12 months. A 60 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. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. The rating 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 rating 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 38 C.F.R. § 4.25. The rating 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. Subject to the provisions of 38 C.F.R. § 3.383(a), if visual impairment of only one eye is service-connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of rating the service-connected visual impairment. 38 C.F.R. § 4.75(c). Diagnostic Code 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 20/100, the following ratings apply. A 50 percent rating is warranted where vision in the other eye is also 20/100. A 30 percent rating is warranted where vision in the other eye is 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. Where the visual acuity in the poorer eye is 20/200, a 70 percent rating is warranted where vision in the other eye is also 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40. Rating of visual field is based on the remaining field of vision in each eye. Under Diagnostic Code 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. At an August 2009 VA examination, the Veteran reported discomfort. Corrected distance measured 20/30. Slit lamp testing showed that the left pupil did not function due to a posterior synechiae, which is when the iris is stuck to the lens. Treatment included daily eye drops. At an August 2010 VA examination, the Veteran reported iritis attacks. Corrected distance measured 20/30. Slit lamp testing showed a round corneal scar that appeared stable. On examination, the iritis was quiet. The examiner noted that the Veteran was subject to attacks from time to time. There was a small cataract secondary to the use of steroids. At a July 2012 VA examination, corrected distance measured 20/40. There was a corneal scar that was not in the visual axis. Slit lamp testing showed posterior synechiae and a mild cataract. The internal eye examination was normal. There was no visual field defect. The examiner indicated that there was no scarring or disfigurement. The mild preoperative cataract caused a decrease in visual acuity. There were no incapacitating episodes. At a July 2017 VA examination, the Veteran reported itching and no current outbreaks of herpes. Corrected distance measured 20/40 or better. Slit lamp testing showed a corneal scar near the pupil margin, posterior synechiae, and a mild cataract. On examination, the iritis was not active. The mild subcapsular cataract caused decrease in visual acuity. The examiner found no visual field defect, but the left eye had an average concentric contraction of 60 degrees. The corneal scar did not cause a decrease in visual acuity. Although the examiner noted the corneal scar measured 2 millimeters, the report also indicated that there was scarring and disfigurement with a scar at least one quarter inch. The Veteran was not receiving any treatment or medication for the eye disabilities. There were no incapacitating episodes. At an October 2019 VA examination, corrected distance measured 20/20 or better. Slit lamp testing showed a trace subcapsular cataract. There was no visual field defect. The mild subcapsular cataract also contributed to the glare while driving at night. In addition, the cataract caused a mild reduction in visual acuity. The iritis caused decreased vision during flare-ups, but there was no inflammation noted on the examination. The corneal scar measured 1.2 millimeter. The examiner noted that the scar may cause glare when driving at night. While the corneal scar, the examiner noted that it was superficial and only visible with a biomicroscope. Thus, the examiner found that the scar was not disfiguring, and that there was no scarring or disfigurement. The examiner indicated that the Veteran did not have any incapacitating episodes. However, the Veteran reported two to three flare-ups per month that required steroid drops to quiet the aching and light sensitivity. Based on the record, the examiner found the level of severity of the cataract and corneal scar to be mild. VA treatment records showed complaints of blurry vision with occasional floaters. There were flare-ups in 2009 requiring a total of five visits. The Veteran also had an office visit for a flare-up in 2011 and 2012. In March 2013, the Veteran reported blurry vision and mild irritation three to four times per week. The Veteran continued to experience inflammation in 2014. Later records showed no left eye pain or reoccurrence of herpes zoster. After review of the record, the Board finds a higher rating is not warranted during the appeal period. Although the VA examiners noted the cataract caused a decrease in visual acuity, the Veteran’s corrected distance measured 20/40 at worst throughout the appeal period. VA treatment records showed complaints of blurry vision, occasional floaters, and some flare-ups. However, the record did not show incapacitating episodes with a total duration of at least two weeks. As of May 13, 2018, the eye disability did not require at least three treatment visits in a 12 month period as required for a 20 percent rating. VA medical records are consistent with the VA examination report and do not indicate any additional findings. Based on visual acuity and muscle function, a compensable rating is not warranted. The July 2017 VA examination showed a reduced visual field. As the average concentric contraction for the left eye was 60 degrees, a 10 percent rating is warranted. Since the unilateral concentric contraction of the visual field was not 15 degrees or less, a higher rating is not warranted under Diagnostic Code 6080. The record shows that the Veteran has minimal decreased visual acuity or other visual impairment. Combining visual acuity and the visual field impairment, a 10 percent rating is warranted. 38 C.F.R. § 4.25. The Board acknowledges that the July 2017 VA examiner’s statement that the corneal scar caused scarring and disfigurement. In considering the examination report, the Board concludes that the notation of scarring and disfigurement was a scrivener’s error because the examiner specifically stated that the scar measured 2 millimeters. Neither the Veteran nor representative has presented evidence or argument regarding why it is believed a higher rating is warranted in this case. In addition, the October 2019 VA examination, after reviewing the previous examiner’s report, clarified that there was no disfigurement. Accordingly, the Board finds that preponderance of the evidence is against a finding that a rating higher than 10 percent is warranted for a left eye disability. Therefore, the claim for increase must be denied. 2. Entitlement to TDIU prior to December 4, 2012 In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from that date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400 (o); Harper v. Brown, 10 Vet. App. 125 (1997). Unless otherwise provided, the effective date of an award of increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation may be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased rating is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. A February 2014 rating decision established entitlement to TDIU with an effective date of December 4, 2012, which was the date of the Veteran’s most recent application for TDIU. At the time, the Veteran had pending appeals for increased ratings for depression and left eye disabilities. Prior to December 4, 2012, service connection was established for depressive disorder, rated 50 percent; lumbar strain, rated 30 percent; right shoulder strain, rated 30 percent; left eye iritis, rated 10 percent; vocal cord dysfunction, rated 0 percent; bilateral hearing loss, rated 0 percent; and tension headaches, rated 0 percent. The combined service-connected disability rating was increased to 80 percent as of May 28, 2009. Prior to May 28, 2009, the combined rating was 60 percent, and the Veteran has not established service connection for depressive disorder. In May 28, 2009, the Veteran submitted a claim for benefits for PTSD. A January 2010 rating decision established service connection for depressive disorder and assigned a30 percent rating. A November 2017 rating decision assigned an earlier effective date of May 28, 2009, for service connection for depression. A September 2019 Board decision assigned a 50 percent rating for depression with an effective date of May 28, 2009. The Social Security Administration awarded the Veteran disability benefits based in part on depression and arthritis, effective August 2006. On a VA Form 21-8940 submitted in March 2010, the Veteran indicated that she last worked full-time in 2004, when she was discharged. She completed four years of high school. At a December 2009 VA psychiatric examination, the examiner diagnosed depression. The Veteran reported that she had a ninth grade education and had received a GED. She retired from the Army and had not worked since retirement. She had not attempted to work after separation. The Veteran indicated that she did an excellent job with her performance in the military, but she was unable to pass the physical standards. On examination, her social skills were fair to poor, thought processes were logical and coherent, and affect was blunted and depressed. The examiner noted signs of mild psychomotor slowing. However, the examiner found the Veteran’s psychiatric disability had no observable impact on occupational functions, but a moderately negative impact on social functioning. At an August 2010 VA eye examination, the eye disability was quiet, and there was no impact on employment in the past 12 months. At an August 2010 VA joints examination, the Veteran reported that she avoided lifting above chest height to avoid pain due to shoulder pain. Her back pain was constant and increased with spasms that caused incapacitation. The Veteran reported 30 incapacitating flare-ups per year. However, she did not have any difficulty performing daily living activities. There was no right shoulder pain at rest. On examination, she had limited shoulder motion with no pain, fatigue, weakness, lack of endurance or coordination. The spinal examination showed pain at the extreme ranges of motion and with bending. The examiner diagnosed right shoulder myofascial pain syndrome and degenerative disc disease with chronic myofascial pain. At a July 2012 VA headaches examination, the Veteran reported no changes in the location, severity, or frequency of the headaches. She had headache pain with pain on both sides of the head, forehead, and temporal areas. The Veteran described the pain as sharp and tight like a band. She did not experience any non-headache symptoms. Typically, the headache pain lasted less than one day. The examiner found the headaches were not characteristic prostrating attacks. The headaches were stable and did not inhibit the Veteran from obtaining and maintaining gainful employment. At a July 2012 VA headaches examination, the Veteran spent time with family, fellow church members, neighbors, and two friends from the military. She attended church twice a week and did not have other regular social activities. The Veteran typically spent her day on computer activities, like Facebook and solitaire. She reported symptoms of headaches, difficulty sleeping, low appetite, depression, low energy, difficulty with focus and concentration, and reduced enjoyment with previously enjoyed activities. On examination, her affect was appropriate and thought processes were clear, logical, linear, coherent, and goal directed. The Veteran exhibited symptoms of fatigue, feelings of worthlessness, poor concentration, depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and neglect of personal appearance and hygiene. The examiner indicated that symptomatology was consistent compared to the last examination with a mild impairment in social functioning. The depression manifested with an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Occupational functioning was also relatively stable as the Veteran was retired and did not have any intent to regain employment. VA treatment records showed depression, anxiety, isolating behavior, and difficulty spending time with others. However, she enjoyed spending time with her family and church, especially her grandchildren. She tried to spend time outside of her house, but preferred to stay home. The Board finds that as of May 28, 2009, the service connected disabilities met the schedular criteria under 38 C.F.R. § 4.16(a). The Board notes the Veteran’s limited mobility due to pain and functional loss, and continued occupation and social impairments due to depression. The Board acknowledges the VA examiners’ opinions that found the Veteran’s disabilities did not affect obtaining or maintaining gainful employment. However, the examiners considered a single disability and not the combined effect of all of the service-connected disabilities. That Board finds that the evidence weighs in favor of the claim. The Board finds that the evidence supports a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities as of May 28, 2009. However, the Board finds that the preponderance of the evidence is against a finding that TDIU was warranted prior to May 28, 2009, as the Veteran had not established service connection for depression prior to that date and the evidence does not show that the other service-connected disabilities precluded securing or following a substantially gainful occupation. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that an earlier effective date of May 28, 2009, but not earlier, for TDIU is warranted and is granted. The Board finds that the preponderance of the evidence is against the assignment of an earlier effective date as the evidence shows that the service-connected disabilities made her unable to secure or follow a substantially gainful occupation as of May 28, 2009, but not earlier and depression was not service-connected prior to May 28, 2009. Therefore, the claim for effective date as of May 28, 2009, but not earlier, for TDIU is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.