Citation Nr: 21024169 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-00 770 DATE: April 22, 2021 ORDER Entitlement to a compensable disability rating for chorioretinal scarring with tiny limbal cornea scarring is denied. FINDING OF FACT The Veteran’s chorioretinal scarring with tiny limbal cornea scarring does not cause irregular, duplicated, enlarged, or diminished image; incapacitating episodes; impairment of visual field or muscle function; or loss of corrected distance visual acuity to worse than 20/40. CONCLUSION OF LAW The criteria for a compensable disability rating for chorioretinal scarring with tiny limbal cornea scarring have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.79, 4.118, Diagnostic Code 6011-6009. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Army from October 1976 to October 1979. This case was most recently before the Board in October 2020, at which time the Board remanded the claim for additional development. The case has since returned to the Board for appellate consideration. Entitlement to a compensable disability rating for chorioretinal scarring with tiny limbal cornea scarring secondary to trauma 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; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation 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. 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran’s chorioretinal scarring with tiny limbal cornea scarring secondary to trauma has been assigned a noncompensable (zero percent) rating under Diagnostic Code 6011-6009 for the entire period on appeal. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that the eye disability is rated as analogous to an unhealed eye injury (Diagnostic Code 6009) under the criteria for retinal scars, atrophy, or irregularities (Diagnostic Code 6011). 38 C.F.R. § 4.79. The Board notes that the rating criteria for evaluating diseases of the eye were amended during the pendency of this appeal. See 89 Fed. Reg. 15316 (Apr. 10, 2018). Where there is a change in the rating criteria during the period on appeal, 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. Prior to May 13, 2018, a 10 percent rating was warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that were centrally located and resulted in an irregular, duplicated, enlarged, or diminished image. Alternatively, the retinal scars, atrophy, or irregularities could be evaluated based on visual impairment due to retinal scars, atrophy, or irregularities, if it would result in a higher evaluation. Effective May 13, 2018, a 10 percent rating is still warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and result in an irregular, duplicated, enlarged, or diminished image. Alternatively, they may be evaluated based on the General Rating Formula for Diseases of the Eye, if this would result in a higher evaluation. The General Rating Formula provides a 10 percent disability rating for documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months. A 20 percent rating is warranted for documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted for documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months. A 60 percent rating is warranted for documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months. For VA purposes, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. 38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009. Turning to the evidence, the Board notes that VA medical treatment records throughout the period on appeal show the Veteran has periodically complained of black spots, floaters, flashes, photophobia, visual disturbances, blurred vision, swelling, inflammation, blind spots, mucus buildup, and discomfort in his eye. In December 2010, the Veteran suggested that his vision and eye pain depended on the weather. Aside from reports of some right eye pain in December 2010, the Veteran routinely denied eye pain. The records are silent for reports or complaints of incapacitating episodes or visual field loss, and the Veteran’s best corrected visual acuity was 20/20 bilaterally throughout the period on appeal. Multiple treatment notes document chorioretinal atrophy with pigment in the right eye. A May 2020 treatment note indicated the presence of a chorioretinal scar in the right eye with no loss of visual acuity. The Veteran reported stable vision and ocular health at that time. The Veteran was first afforded a VA examination in connection with his claim in May 2010. The examiner noted that the Veteran’s chorioretinal scarring dated back to 1978, when he was hit in the eye with a paperclip during service, which caused a laceration and small hyphemia with mild uveitis. The examiner noted that the course of the condition had been stable since service. The examiner further noted that the Veteran’s tiny limbal scarring of the inferior right eye was not visually significant and should not cause visual field loss. The condition had been stable since onset, and the Veteran was not currently undergoing treatment for the condition. The Veteran reported symptoms of swelling in the right eye and blurring and floaters in both eyes. Physical examination revealed chorioretinal scarring of the right eye between 7-9 o’clock at the far periphery near the ora. The examiner noted scotomas in both eyes but wrote that the size was “very unreliable” and inconsistent with true visual field loss superiorly. Uncorrected distance visual acuity was 20/30 in the right eye and 20/20 in the left eye. Corrected distance visual acuity was 20/20 in both eyes. Uncorrected near visual acuity was 20/60 in both eyes. Corrected near visual acuity was 20/20-1 in both eyes. The Veteran reported that he was unemployed, but that he had a history of line work for a steel plant. He reported that he retired in May 2007 after being laid off. The examiner determined that the Veteran’s chorioretinal scarring had no significant effects on his usual occupation, and that there were no effects on his usual daily activities. The examiner concluded that the Veteran’s chorioretinal scar did not cause decrease in vision, floaters, or loss of visual field. The examiner noted that the visual fields on examination were “very unreliable” for determining whether there might be visual field loss, but it would be unlikely given that past visual field testing had been normal, all other fields were stable, and the chorioretinal scarring had not changed in size or shape over time. The Veteran was afforded another VA examination in April 2016. The examiner noted diagnoses of right eye chorioretinal scar, right eye small limbal corneal scar, and mild age-related nuclear sclerotic cataracts that were not related to service or to trauma. The examiner noted the 1978 in-service trauma. The Veteran reported that his vision sometimes bothered him in that eye. Physical examination revealed uncorrected distance visual acuity of 20/70 in both eyes; uncorrected near visual acuity of 20/50 in both eyes; corrected distance visual acuity of 20/40 or better in both eyes; and corrected near visual acuity of 20/40 or better in both eyes. Internal eye examination revealed a chorioretinal scar in the far periphery of the right eye, approximately 4 DD (disc diameter) in size and pigmented. Visual field testing was performed, and the examiner indicated the Veteran had a visual field defect but did not describe it. The examiner indicated that the Veteran had no contraction of a visual field, no loss of a visual field, and no scotoma. Visual field charts are associated with the claims file. The examiner noted the presence of a corneal condition but indicated the Veteran did not have any decrease in visual acuity or other visual impairment. The examiner again described the Veteran’s chorioretinal scar and noted no active inflammation, with surrounding retina intact. The Veteran had not had any incapacitating episodes attributable to an eye condition during the past 12 months. The examiner determined that the Veteran’s eye disability did not impact his ability to work. In an accompanying opinion, the examiner wrote that the Veteran’s small corneal scar located at the peripheral part of the right cornea had not changed since his last examination. The examiner wrote that the scar was not near the visual axis, did not affect vision, and did not affect field of vision. The examiner also found no change in the appearance of the chorioretinal scarring located in the periphery of the right retina. The chorioretinal scar was not near the visual axis, did not affect visual acuity, and did not affect the field of vision. The examiner determined that the Veteran’s right eye chorioretinal scar did not affect his vision. The Veteran was most recently afforded a VA examination in connection with his claim in January 2020. The examiner noted that the Veteran had a right eye corneal scar, right eye corneal scarring, and cataracts of both eyes. He reported symptoms of “occasional blurry vision and mucous.” Physical examination revealed uncorrected distance visual acuity of 20/40 in both eyes; corrected distance visual acuity of 20/20 or better in both eyes; uncorrected near vision of 20/70 in both eyes; and corrected near vision of 20/20 or better in both eyes. The examiner noted the presence of a corneal scar measuring less than 1 millimeter at 7 o’clock near the limbus of the right eye and a 4 disc diameter area of chorioretinal scarring at 9 o’clock in the far periphery of the right eye. The examiner noted that the Veteran did not have a visual field defect. The examiner found that the Veteran did not have any decrease in visual acuity or visual impairment due to his right eye corneal scar or chorioretinal scarring. There were no incapacitating episodes and no scarring or disfigurement associated with any eye condition. The examiner found that the Veteran’s eye conditions did not impact his ability to work. The examiner provided additional details concerning the Veteran’s right eye corneal and chorioretinal scarring in the remarks section of the examination report. The examiner noted that the area of the Veteran’s chorioretinal atrophy was not centrally located and did not result in an irregular, duplicated, enlarged, or diminished image. The Veteran’s corneal scar was not central and not visible to the naked eye. The examiner wrote that the Veteran did not have any examination findings to support his complaints of black spots, floaters, flashes, photophobia, visual disturbances, blurred vision, swelling, inflammation, blind spots, mucus buildup, or daily discomfort in his eye. There were also no examination findings to support his complaints that his vision was worse in cold weather, snow, humidity, and sunny weather. The examiner further noted that the Veteran’s cataracts were an incidental finding, were age-related, and were not related to his eye trauma. Visual field charts accompanying the examination report showed some loss of visual field. In an October 2020 opinion, the VA examiner who completed the January 2020 examination wrote that the visual field defects were likely due to difficulty in taking the test. The examiner explained that the Veteran had normal visual fields in 2016 and had not had any new eye disease diagnosed since then that would account for the visual field changes. Overall, after careful review of the evidence of record, the Board finds that a compensable rating is not warranted at any point during the period of appeal. The Veteran has never been shown to have symptoms of seeing irregular, duplicated, enlarged, or diminished images to warrant a 10 percent rating under Diagnostic Code 6011 under either the old or new criteria. VA examiners did not make any findings of irregular, duplicated, enlarged, or diminished images. Indeed, the January 2020 VA examiner specifically noted that the area of the Veteran’s chorioretinal atrophy was not centrally located and did not result in an irregular, duplicated, enlarged, or diminished image. VA treatment records document chorioretinal atrophy throughout the period on appeal, but the records are silent for indications the atrophy was centrally located and resulted in an irregular, duplicated, enlarged, or diminished image. Further, there is no evidence that the Veteran’s service-connected disability would warrant a compensable rating based on visual impairment or incapacitating episodes under either the old or new criteria for evaluating diseases of the eye. VA treatment records show the Veteran’s best corrected visual acuity has been 20/20 bilaterally throughout the period on appeal. VA examination reports documented corrected distance visual acuity of 20/40 or better. Though the January 2020 visual field charts documented some loss of visual field, the examiner explained that the visual field defects were likely due to difficulty in taking the test, and that the Veteran had normal visual fields in 2016 and had not had any new eye disease diagnosed since then that would account for the visual field changes. Finally, the evidence does not show that the Veteran’s corneal scarring is significant enough to warrant a separate rating based on scarring or disfigurement. Indeed, multiple VA examination reports show that the Veteran’s disability did not cause scarring or disfigurement. The Board has considered whether referral for consideration of an extraschedular disability rating would be appropriate in this case. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. Regarding the first element, the Board finds that comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. As previously discussed, the Veteran’s chorioretinal scarring with tiny limbal cornea scarring is rated under Diagnostic Code 6011-6009, for which a 10 percent disability rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and result in an irregular, duplicated, enlarged, or diminished image. The disability may also be rated based on visual impairment or incapacitating episodes under the General Rating Formula for Diseases of the Eye. VA treatment records show the Veteran has complained of black spots, floaters, flashes, photophobia, visual disturbances, blurred vision, swelling, inflammation, blind spots, mucus buildup, and discomfort in his eye, and he has also suggested that his vision and eye pain depended on the weather. However, the May 2010, April 2016, and January 2020 VA examiners all found that the Veteran’s service-connected disability did not cause visual impairment. The January 2020 examiner, in particular, wrote that the Veteran did not have any examination findings to support his complaints of black spots, floaters, flashes, photophobia, visual disturbances, blurred vision, swelling, inflammation, blind spots, mucus buildup, or daily discomfort in his eye. The record is silent for incapacitating episodes related to the Veteran’s disability. Based on the foregoing, the Board finds that the Veteran’s chorioretinal scarring with tiny limbal cornea scarring manifestations are reasonably contemplated by the assigned Diagnostic Code; therefore, the threshold issue under Thun is thus not met. In this regard, the Board notes that, pursuant to the Board’s May 2019 remand instructions, VA contacted the Veteran via a December 2019 letter requesting a statement concerning how his chorioretinal scarring with tiny limbal cornea scarring impacted his employment, as well as any other reasons why he believed an extraschedular rating was warranted. However, the Veteran did not respond to the letter. The record does not otherwise show that the Veteran’s disability has caused marked interference with employment or frequent periods of hospitalization—indeed, multiple VA examiners found that his disability does not impact his ability to work, and the record does not show that the Veteran has been hospitalized for his disability. Therefore, even assuming the Veteran met the threshold criteria for extraschedular consideration under Thun, the Veteran’s disability picture does not exhibit other related factors such as marked interference with employment or frequent periods of hospitalization that would warrant further extraschedular consideration. As such, the weight of the evidence establishes that a compensable rating for chorioretinal scarring with tiny limbal cornea scarring is not warranted at any point during the period on appeal. Because the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Therefore, the Veteran’s claim must be denied. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.