Citation Nr: 21014956 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 10-02 432 DATE: March 16, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for bilateral diabetic retinopathy with cataracts is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s bilateral concentric contraction of visual field reflects remaining fields between 46 and 60 degrees. Corrected distance was, at worst, 20/40 in the right eye, and 20/40 in the left eye. There is no evidence of impairment of muscle function or incapacitating episodes. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for bilateral diabetic retinopathy with cataracts are not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.75-4.79, 4.84a, Diagnostic Code 6027-6080 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1955 to August 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in September 2015, December 2016, September 2017, June 2020, and October 2020. The Board’s June 2020 and October 2020 remands directed the RO to obtain any outstanding VA and private treatment records identified by the Veteran. To date, the Veteran has not completed an updated VA Form 21-4142 to obtain any identified outstanding treatment records, nor has he provided copies of these treatment records to VA on his own. VA’s duty to assist is not always a one-way street. As the Board remanded this matter two times to allow the Veteran to complete an updated VA Form 21-4142 or provide VA copies of the aforementioned treatment records, and VA made at least two requests to the Veteran to complete an updated VA Form 21-4142 or provide his own copies, and the Veteran did not respond, the Board finds that there has been substantial compliance with its June 2020 and October 2020 remand directives, and it will proceed with adjudication of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Higher Initial Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2019). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating in excess of 20 percent for bilateral diabetic retinopathy with cataracts The Veteran seeks a higher rating for his service-connected bilateral diabetic retinopathy with cataracts, which is currently rated as 20 percent disabling under Diagnostic Code 6027-6080. The Veteran’s initial rating for his bilateral eye disability was assigned under the July 1, 2007 revision of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings – eye. During the pendency of the Veteran’s appeal, VA issued final rules revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye, effective December 10, 2008 and 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. Here, the Board will consider the Veteran’s claim under the July 1, 2007, December 10, 2008, and May 13, 2018 revisions, and the Veteran’s rating will be based on whichever evaluation is more favorable to him. Both the former and revised criteria provide for consideration of visual impairment, which 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 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.    Under the former criteria (Diagnostic Codes 6076-6078, pre-2008) and revised criteria (Diagnostic Code 6006, post-2008) for visual acuity, a 30 percent rating is assigned visual acuity in one eye (the poorer eye) is 20/70, and vision in the other eye is 20/70; when visual acuity in one eye (the poorer eye) is 20/100, and vision in the other eye is 20/70; when visual acuity in one eye (the poorer eye) is 20/200, and vision in the other eye is 20/50; when visual acuity in one eye (the poorer eye) is 15/200, and vision in the other eye is 20/50; or when visual acuity in one eye (the poorer eye) is 10/200, and vision in the other eye is 20/40.  38 C.F.R. § 4.84a (2007); 38 C.F.R. § 4.79 (2009). 38 C.F.R. § 4.79 (2019).    Regarding impairment of the field of vision, 38 C.F.R. § 4.76a, Table III, provides that the normal visual field extant at the 8 principal meridians totals 500 degrees. The normal values for the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally.  The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight principal meridians.   Prior to the December 10, 2008 revisions, under Diagnostic Code 6080, when the remaining visual field is 46 to 60 degrees unilaterally or bilaterally, 10 and 20 percent disability ratings are assigned, respectively, or each affected eye may be evaluated as 20/50.  38 C.F.R. § 4.84a (2007).  When the remaining visual field is 31 to 45 degrees unilaterally or bilaterally, 10 or 30 percent disability ratings are assigned, respectively, or each affected eye may be evaluated as 20/70.  Id.  When the remaining visual field is 16 to 30 degrees unilaterally or bilaterally, 10 percent and 50 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/100.  Id.  When the remaining visual field is 6 to 16 degrees unilaterally or bilaterally, 20 percent and 70 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/200.  Id. When the remaining visual field is 5 degrees or less unilaterally or bilaterally, 30 or 100 percent disability ratings are assigned, respectively, or each affected eye may be evaluated as 5/200. Id. Under the revised criteria for Diagnostic Code 6080, when the remaining visual field is 46 to 60 degrees bilaterally or unilaterally, a 10 percent disability rating is assigned in both instances, or each affected eye may be evaluated as 20/50.  38 C.F.R. § 4.79.  When the remaining visual field is 31 to 45 degrees unilaterally or bilaterally, 10 percent and 30 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/70.  Id.  When the remaining visual field is 16 to 30 degrees unilaterally or bilaterally, 10 percent and 50 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/100.  Id.  When the remaining visual field is 6 to 16 degrees unilaterally or bilaterally, 20 percent and 70 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/200.  Id. When the remaining visual field is 5 degrees or less unilaterally or bilaterally, 30 and 100 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 5/200. Id.  When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the visual acuity and visual field defect are separately evaluated and combined under the provisions of 38 C.F.R. § 4.25.  38 C.F.R. § 4.77(c). Under the pre-2018 criteria, Diagnostic Code 6027 (Cataract) instructed to evaluate preoperative cataracts and postoperative cataracts where a replacement lens is present (pseudophakia) based on visual impairment, while postoperative cataracts without a replacement lens were to be evaluated under Diagnostic Code 6029, aphakia.  Under the 2018 revised criteria, Diagnostic Code 6027 instructs to evaluate preoperative cataracts and postoperative cataracts where a replacement lens is present under the General Rating Formula for Diseases of the Eye, while postoperative cataracts without a replacement lens are to be evaluated under Diagnostic Code 6029. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or incapacitating episodes, whichever results in a higher evaluation. Under the amended regulations, a 40 percent rating is assigned 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.  38 C.F.R. § 4.79. Based on a review of the relevant evidence, the Board finds that an initial rating in excess of 20 percent for bilateral diabetic retinopathy with cataracts is not warranted. Specifically, the medical evidence of record, to include the June 2008, September 2012, November 2015, February 2017, April 2019, and September 2019 VA examinations, and post-service treatment records, reflects corrected distance measuring no more than 20/40 in the right eye and 20/40 in the left eye.  Further, the medical evidence of record is silent for evidence of visual acuity of at least 20/50 in one eye and 20/50 in the other eye.  When applying visual acuity of 20/40 for the right eye and 20/40 for the left eye, under Diagnostic Code 6079 (pre-2008 criteria) and Diagnostic Code 6066 (post-2008 criteria), a noncompensable rating is warranted for visual acuity under both the former and revised criteria.   Additionally, the 2008, 2015, 2017, and 2019 VA examiners indicated the presence of bilateral visual field defects.   For the June 2008 VA examination, Goldmann perimetry as to the Veteran’s right eye showed the remaining visual fields were, in degrees: 75 temporally, 75 down temporally, 65 down, 42 down nasally, 55 nasally, 45 up nasally, 40 up, and 55 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 452. Dividing 452 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 57 degrees of the visual field for the right eye. Goldmann perimetry testing as to the Veteran’s left eye showed the remaining visual fields were in degrees:  70 temporally, 75 down temporally, 60 down, 45 down nasally, 48 nasally, 48 up nasally, 45 up, and 55 up temporally.  Adding the remaining visual field at each principal meridian results in a total remaining visual field of 446 degrees.  Dividing 446 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 56 degrees of the visual field for the left eye.   For the November 2015 VA examination, Goldmann perimetry as to the Veteran’s right eye showed the remaining visual fields were, in degrees: 68 temporally, 66 down temporally, 50 down, 40 down nasally, 48 nasally, 42 up nasally, 44 up, and 55 up temporally.  Adding the remaining visual field at each principal meridian results in a total remaining visual field of 413 degrees.  Dividing 413 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 52 degrees of the visual field for the right eye.  Goldmann perimetry testing as to the Veteran’s left eye showed the remaining visual fields were in degrees:  72 temporally, 72 down temporally, 52 down, 48 down nasally, 48 nasally, 40 up nasally, 45 up, and 30 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 407 degrees. Dividing 407 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 51 degrees of the visual field for the left eye.  For the February 2017 VA examination, Goldmann perimetry as to the Veteran’s right eye showed the remaining visual fields were, in degrees: 75 temporally, 70 down temporally, 54 down, 44 down nasally, 47 nasally, 40 up nasally, 38 up, and 52 up temporally.  Adding the remaining visual field at each principal meridian results in a total remaining visual field of 420 degrees.  Dividing 420 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 53 degrees of the visual field for the right eye.  Goldmann perimetry testing as to the Veteran’s left eye showed the remaining visual fields were in degrees:  70 temporally, 75 down temporally, 55 down, 45 down nasally, 42 nasally, 45 up nasally, 38 up, and 39 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 409 degrees. Dividing 409 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 51 degrees of the visual field for the left eye.   For the September 2019 VA examination, Goldmann perimetry as to the Veteran’s right eye showed the remaining visual fields were, in degrees: 72 temporally, 76 down temporally, 60 down, 45 down nasally, 45 nasally, 41 up nasally, 39 up, and 50 up temporally.  Adding the remaining visual field at each principal meridian results in a total remaining visual field of 428 degrees.  Dividing 428 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 54 degrees of the visual field for the right eye.  Goldmann perimetry testing as to the Veteran’s left eye showed the remaining visual fields were in degrees:  76 temporally, 75 down temporally, 64 down, 50 down nasally, 46 nasally, 55 up nasally, 39 up, and 50 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 455 degrees. Dividing 455 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 57 degrees of the visual field for the left eye.   The Veteran’s visual field defect may be evaluated based on either remaining visual field degrees or based on visual acuity assigned for remaining visual field degrees, whichever results in the higher rating.  Throughout the entire period on appeal, the Veteran’s right and left eye visual field defects have been between 46 and 60 degrees. Under the pre-2008 rating criteria, Diagnostic Code 6080 instructed to evaluate bilateral visual field defect between 46 and 60 degrees as 20 percent. Under the post-2008 rating criteria, Diagnostic Code 6080 instructs to evaluate bilateral visual field defect between 46 and 60 degrees as 10 percent. Here, the pre-2008 rating criteria for bilateral visual field defect between 46 and 60 degrees is more favorable to the Veteran. However, remaining visual field criteria for both pre-2008 and post-2008 also instructs to evaluate the Veteran’s right eye and left eye each as 20/50, as his average remaining visual fields for his right and left eyes are between 46 to 60 degrees throughout the period on appeal (when remaining visual field is 46 to 60 degrees, each affected eye is evaluated as 20/50).  When applying visual acuity of 20/50 for the right eye and 20/50 for the left eye to determine visual field defect, a 10 percent rating would be warranted under both the pre-2008 and post-2008 rating criteria.  Thus, taking the higher of the two evaluations (20 percent based on a bilateral rating for remaining visual field between 46 and 60 degrees, under the pre-2008 rating criteria, or 10 percent based on applying visual acuity of 20/50 for the right eye and 20/50 for the left eye), here, the 20 percent evaluation based on a bilateral rating for remaining visual field between 46 and 60 degree under the pre-2008 rating criteria, results in the higher rating. To the determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present, VA separately evaluates the visual acuity and visual field defect (expressed as a level of visual acuity) and combines them under the provisions of 38 C.F.R. § 4.25.  Thus, when combining the Veteran’s noncompensable rating for his visual acuity impairment with his 20 percent rating for his bilateral visual field defect under the pre-2008 rating criteria, a 20 percent rating is achieved.  Therefore, the currently assigned 20 percent rating for the period on appeal is appropriate, and the Veteran is not entitled to a higher rating.  The Board has also considered whether a higher rating is warranted under Diagnostic Code 6027 for the Veteran’s bilateral cataracts. As the amended regulations went into effect during the rating period on appeal, both the former and revised criteria under Diagnostic Code 6027 are for consideration. During this period on appeal, the Veteran’s right eye cataract and left eye cataract were preoperative. Pre-2018 criteria under Diagnostic Code 6027 instructed to evaluate preoperative cataracts based on impairment of vision, while the current revision under Diagnostic Code 6027 instructs to evaluate postoperative cataracts under the General Rating Formula for Disease of the Eye, which instructs to evaluate based on either visual impairment or incapacitating episodes. Under both the former and revised rating criteria for Diagnostic Code 6027, the medical evidence of record does not reflect visual acuity of at least 20/50 in one eye and 20/50 in the other eye, or impairment of muscle function, to include diplopia. Further, under the revised criteria, there is no evidence of incapacitating episodes. Thus, a higher rating under Diagnostic Code 6027 is not warranted. In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 20 percent for bilateral diabetic retinopathy with cataracts under Diagnostic Code 6027-6080, the claim must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.