Citation Nr: 21024047 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-46 874 DATE: April 22, 2021 ORDER The reduction of the rating for bilateral cataracts from 20 percent to 0 percent effective August 1, 2014, was proper. A higher rating for bilateral cataracts is denied. FINDINGS OF FACT 1. The Veteran underwent eye examination in December 2013, he was notified of a proposed reduction in February 2014, and the reduction was implemented in an April 2014 rating decision. 2. During the appeal period, the preponderance of the evidence indicates that the Veteran’s cataracts are not visually significant, manifest in no decrease in visual acuity or other visual impairment. CONCLUSIONS OF LAW 1. The criteria for a reduction of the rating for bilateral cataracts from 20 percent to 0 percent effective August 1, 2014, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.28. 2. The criteria for a higher rating for bilateral cataracts are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6027, 6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to March 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision. The Veteran filed a claim for an increased rating for cataracts in October 2013, contending that his cataracts had worsened. The Veteran’s cataracts were assigned a 20 percent rating prior to August 1, 2014, under DC 6080, for visual field defect. As of August 1, 2014, the rating for cataracts has been reduced to 0 percent. Reduction If a rating has been continued at the same level for long periods, meaning five years or more, VA may not reduce the rating based on examinations less full and complete than those on which payments were authorized or continued. 38 C.F.R. § 3.344(a). If a reduction in the rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. A period of 60 days is allowed for response. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e), (i). As a preliminary matter, the Board notes that the Veteran does not contend, and the evidence does not show, noncompliance with the procedural requirements for rating reductions. 38 C.F.R. § 3.105(e). Notice was issued with a statement of facts and reasons for the reduction. An opportunity was provided to submit evidence against a proposed reduction. A subsequent rating decision enacted the proposed reduction at the appropriate effective date. Hence, the Board finds the notice provisions have been satisfied. Therefore, the Board will focus only upon the propriety of the reduction. For ratings that have been continued for five years or more, certain regulatory provisions apply. 38 C.F.R. § 3.344(a), (b). Each disability is viewed in relation to its history. 38 C.F.R. § 4.1. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately indicate the elements of disability present. 38 C.F.R. § 4.2. The rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that the improvement indicates improvement in the ability to function under ordinary conditions of life and work. 38 C.F.R. § 4.13. A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless the Board concludes that a preponderance of evidence weighs against the claim. Brown v. Brown, 5 Vet. App. 413 (1993). As to the reduction of the Veteran’s rating for cataracts, the Board finds that the evidence of record supports the reduction. A June 2012 VA examination, prior to the Veteran’s claim, indicates that the Veteran’s cataracts were not visually significant. Visual acuity and visual fields were normal, and there were no other symptoms noted. VA examinations subsequent to the Veteran’s claim, including in December 2013 and October 2019, also indicate that the Veteran’s cataracts were visually not significant, with normal visual acuity and no visual field defects. VA medical records are consistent with VA examination reports, indicating best corrected visual acuity of 20/40 or better, with no visual field defect or other visual field impairment due to cataracts. Regarding the visual field defect found by an October 2007 VA examiner upon which the 20 percent increase was based, the October 2019 VA examiner indicated that cataracts do not cause absolute peripheral visual field defects, therefore the narrative that reported a visual field defect secondary to cataracts was incorrect. The Board acknowledges the Veteran’s statements regarding the worsening of the cataracts. However, multiple VA examinations and VA medical records show no findings supporting the contention that the cataracts had worsened. To the contrary, the preponderance of the evidence indicates that the cataracts are not visually significant. Accordingly, the Board finds that the preponderance of the evidence is against restoration of the rating for cataracts; therefore, the claim is denied. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 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. Both the former and revised criteria distinguish preoperative and postoperative cataracts. For preoperative cataracts (as is the case here), the former criteria instructed to evaluate based on visual impairment and the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. 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). 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, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. 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). Subject to the provisions of § 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 evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. The evaluation for visual impairment of one eye should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under DC 7800). 38 C.F.R. § 4.75(d). DC 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 one eye (the poorer eye) is 20/50, the following ratings apply. A 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Where the visual acuity in one eye (the poorer eye) is 20/70, the following ratings apply. A 30 percent rating is warranted where vision in the other eye is also 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. 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. As to the increased rating claim, the Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted for cataracts at any time during the appeal period. As noted above, VA examinations during the appeal period in June 2012, December 2013, and October 2019, all found that the Veteran’s cataracts were not visually significant. Specifically, best corrected distance vision as found to be 20/40 or better at all examinations, and no visual field defect was found at any examination. No VA examiner found that the cataracts caused scarring or disfigurement, incapacitating episodes, or any functional impact. These findings are corroborated by VA medical records, which also indicate a history of visually non-significant cataracts, with best corrected distance vision of 20/40 or better and no visual field defect. There are no other visual complaints or impairments related to cataracts indicated in the record. Notably, multiple VA examiners noted that the Veteran’s cataracts are age-related, and not actually secondary to service-connected diabetes mellitus as found previously. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted for bilateral cataracts. Therefore, the claim for increased rating is denied. JOHN Z. JONES 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.