Citation Nr: 21023378 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-01 708 DATE: April 20, 2021 ORDER Entitlement to a separate compensable disability rating for the residuals of cataracts is denied. FINDING OF FACT 1. The Veteran’s residuals of cataracts manifest as impaired visual acuity to no worse than bilaterally with no incapacitating episodes in a twelve-month period. 2. The Veteran’s defects in superior visual field are due to his non-service-connected ptosis disability. CONCLUSION OF LAW The criteria for a separate compensable disability rating for residuals of cataracts have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, 4.119, Diagnostic Code 6027, Diagnostic Code 6066, Diagnostic Code 6080, and Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1, 1959 until his honorable retirement on August 31, 1986. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In July 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to provide the Veteran with a VA examination in order to evaluate the current severity of any residuals of the Veteran’s cataracts. In response, in October 2020, the RO provided the Veteran with a VA examination to determine the severity of any residuals of the Veteran’s cataracts and in January 2021, the RO obtained an addendum opinion to determine if any of the other eye disabilities are residuals of the Veteran’s cataract surgery. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Entitlement to a separate compensable disability rating for the residuals of cataracts The Veteran asserts that he is entitled to a separate compensable disability rating for cataracts. As a preliminary matter, the Veteran is service connected for type II diabetes mellitus with status post bilateral cataract removal under Diagnostic Code 7913. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). The question for the Board is if the Veteran’s residuals of cataracts warrant a compensable disability rating. Cataracts (and the residuals of cataracts) are rated under Diagnostic Code 6027. 38 C.F.R. § 4.79. Diagnostic Code 6027 provides that preoperative cataracts are evaluated under the General Rating Formula for Diseases of the Eye and postoperative cataracts with a replacement lens is evaluated under the General Rating Formula for Diseases of the Eye; or if there is no replacement lens, the residuals are evaluated based on aphakia under Diagnostic Code 6029. The Veteran was afforded a VA examination in October 2020. The October 2020 VA examiner noted that the Veteran’s cataract disability has resolved with implants placed in 2011 with replacement lenses. The General Rating Formula for Diseases of the Eye 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. The Board notes that the Veteran does not report any incapacitating episodes attributable to any eye condition within the prior 12 months. Therefore, evaluation based upon defective vision is appropriate. 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. 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. 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. Diagnostic Code 6066 provides disability ratings where vision in one eye (the poorer eye) is 10/200 or better. Where visual acuity in one eye (the poorer eye) is 10/200, a 30 percent disability rating is warranted where vision in the other eye is 20/40. A 40 percent disability rating is warranted where vision in the other eye is 20/50. A 50 percent disability rating is warranted where vision in the other eye is 20/70. A 60 percent disability rating is warranted where vision in the other eye is 20/100. A 70 percent disability rating is warranted where vision in the other eye is 20/200. An 80 percent disability rating is warranted where vision in the other eye is 15/200. A 90 percent disability rating is warranted where vision in the other eye is 10/200. Id. Where visual acuity in one eye (the poorer eye) is 15/200, a 20 percent disability rating is warranted where vision in the other eye is 20/40. A 30 percent disability rating is warranted where vision in the other eye is 20/50. A 40 percent disability rating is warranted where vision in the other eye is 20/70. A 60 percent disability rating is warranted where vision in the other eye is 20/100. A 70 percent disability rating is warranted where vision in the other eye is 20/200. An 80 percent disability rating is warranted where vision in the other eye is 15/200. Id. Where visual acuity in one eye (the poorer eye) is 20/200, a 20 percent disability rating is warranted where vision in the other eye is 20/40. A 30 percent disability rating is warranted where vision in the other eye is 20/50. A 40 percent disability rating is warranted where vision in the other eye is 20/70. A 60 percent disability rating is warranted where vision in the other eye is 20/100. A 70 percent disability rating is warranted where vision in the other eye is 20/200. Id. Where visual acuity in one eye (the poorer eye) is 20/100, a 10 percent disability rating is warranted where vision in the other eye is 20/40. A 20 percent disability rating is warranted where vision in the other eye is 20/50. A 30 percent disability rating is warranted where vision in the other eye is 20/70. A 50 percent disability rating is warranted where vision in the other eye is 20/100. Id. Where visual acuity in one eye (the poorer eye) is 20/70, a 10 percent disability rating is warranted where vision in the other eye is 20/40. A 20 percent disability rating is warranted where vision in the other eye is 20/50. A 30 percent disability rating is warranted where vision in the other eye is 20/70. Id. Where visual acuity in one eye (the poorer eye) is 20/50, a 10 percent disability rating is warranted where vision in the other eye is 20/40. A 10 percent disability rating is warranted where vision in the other eye is 20/50. Where visual acuity in one eye (the poorer eye) is 20/40, a noncompensable disability rating is warranted where vision in the other eye is 20/40 or better. 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. An October 2020 VA examination reveals that the Veteran had bilateral glaucoma (not service connected), bilateral dry eye syndrome (not service connected), ptosis of the upper eye lids (not service connected), and bilateral posterior chamber intraocular lenses with pseudophakia (service connected residuals of cataracts). The Board notes that the October 2020 VA examiner provided an addendum opinion in January 2021 that noted the Veteran’s dry eye syndrome is less likely than not (less than 50 percent probability) a residual of the Veteran’s cataracts or cataract surgery because it is not a common complication of cataract surgery; the Veteran’s glaucoma is less likely than not (less than 50 percent probability) a residual of the Veteran’s cataracts or cataract surgery because the development of glaucoma occurs over time and this is the natural progression of the disability; and ptosis is less likely than not (less than 50 percent probability) a residual of the Veteran’s cataracts or cataract surgery because the disability was present prior to cataract surgery and is not a residual presentation. The October 2020 VA examiner determined that the Veteran had the following visual defects: 10.21.2020 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/50 20/40 20/100 20/40 LEFT 20/70 20/40 20/100 20/40 The October 2020 VA examination also revealed that the Veteran has a documented visual field defect. Specifically, the Veteran has bilateral superior arcuate visual field defect. Based on the evidence above, a compensable disability rating 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 noncompensable disability rating. Diagnostic Code 6080 provides that bilateral loss of superior half of visual field warrants a 10 percent disability when it is due to a service-connected disability. However, the Board notes that the October 2020 VA examiner explained that the Veteran’s loss of visual field is attributable to the Veteran’s non-service-connected ptosis and therefore service connection and a rating for loss of visual field is not warranted. Therefore, the Board finds that the Veteran’s loss of visual acuity is noncompensable and is appropriately rated as a noncompensable disability under his service-connected type II diabetes mellitus in accordance with 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a separate compensable disability rating 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). M. Tenner 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.