Citation Nr: 21026046 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-15 783A DATE: April 29, 2021 ORDER For the period from May 9, 2012 to July 19, 2015 a disability rating in excess of 70 percent for bilateral glaucoma and constriction of visual field is denied. For the period from July 20, 2015 to June 7, 2018 an 80 percent disability rating for bilateral glaucoma and constriction of visual field is granted. A disability rating in excess of 80 percent from July 20, 2015 for bilateral glaucoma and constriction of visual field is denied. FINDINGS OF FACT 1. From May 9, 2012 to July 19, 2015; the Veteran’s bilateral glaucoma and constriction of visual field manifests as impaired visual acuity to no worse than 20/40 bilaterally; impaired visual fields with an average concentric contraction of no less than 34.375 degrees in the right eye and no less than 23.875 degrees in the left eye; and no incapacitating episodes in a twelve-month period. 2. From July 20, 2015 to June 7, 2018; The Veteran’s bilateral glaucoma and constriction of visual field manifests as impaired visual acuity to no worse than 20/70 in the right eye and no worse than 20/200 in the left eye; impaired visual fields with an average concentric contraction of no less than 20.875 degrees in the right eye and no less than 8 degrees in the left eye; and no incapacitating episodes in a twelve-month period. 3. From July 20, 2015; the Veteran’s bilateral glaucoma and constriction of visual field manifests as impaired visual acuity to no worse than 20/50 in the right eye and no worse than 20/200 in the left eye; impaired visual fields with an average concentric contraction of no less than 13.875 degrees in the right eye and no less than 12.125 degrees in the left eye; and no incapacitating episodes in a twelve-month period. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for bilateral glaucoma and constriction of visual field for May 9, 2012 to July 19, 2015; have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6013. 2. The criteria for a disability rating of 80 percent for bilateral glaucoma and constriction of visual field from July 20, 2015 through June 7, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6013. 3. The criteria for a disability rating in excess of 80 percent for bilateral glaucoma and constriction of visual field from June 7, 2018; have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6013. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1988 until his honorable discharge in June 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Montgomery, Alabama Regional Office (RO) of the United States Department of Veterans Affairs (VA). In March 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain outstanding treatment records including the VA treatment records from February 2013 and February 2014 that noted visual field testing was conducted, treatment records from Vision Partners and Certified Vision Rehabilitation Therapist at the Alabama Institute for Deaf and Blind. The record indicates that in a November 2, 2020 letter, the Veteran was directed to return the enclosed VA Forms (21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veteran Affairs) for treatment records from Vision Partners and Certified Vision Rehabilitation Therapist at the Alabama Institute for Deaf and Blind. The Board notes that the duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board notes that the Veteran’s treatment records from Vision Partners is now included within the record. However, because the Veteran did not return the requested forms, the Board shall decide the case based upon the evidence of record. 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. 1. Entitlement to a disability rating in excess of 70 percent from May 9, 2012 to June 7, 2018 for bilateral glaucoma and constriction of visual field 2. Entitlement to a disability rating in excess of 80 percent from June 8, 2018 for bilateral glaucoma and constriction of visual field Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he is entitled to a 100 percent disability rating for his bilateral glaucoma and constriction of visual field. Evaluations of defective vision are evaluated 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. The Veteran is currently rated under Diagnostic Code 6013-6066. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. As a preliminary matter, the Board finds that a change in the Veteran’s assigned Diagnostic Code is warranted. The Board notes that the Court has held that the selection of a particular Diagnostic Code “is a determination that is completely dependent upon the facts of a particular case,” and the Board has discretion in determining the appropriate Diagnostic Code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential “arbitrary, capricious” standard, rather than de novo review, to the Board’s determination of the appropriate Diagnostic Code). The Veteran is currently assigned a 70 to 80 percent disability rating under Diagnostic Codes 6013-6080 and 6013-6066 for impairment of visual fields and impairment of visual acuity due to glaucoma. Accordingly, the Veteran is currently being rated for impairment of the visual field and visual acuity due to glaucoma. However, the Diagnostic Code 6013 provides for the visual impairments due to his diagnosed glaucoma and adequately addresses the Veteran’s disability. Therefore, the Board finds that a rating under Diagnostic Codes 6013-6080 and 6013-6066 are not the appropriate Diagnostic Codes to rate the Veteran’s disability because they are redundant and do not require a hyphenated Diagnostic Code. As such, the Board finds that a rating under Diagnostic Code 6013 for bilateral glaucoma with constriction of the visual field is the more appropriate Diagnostic Code. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran’s disability is Diagnostic Code 6013. The Board further notes that the Veteran’s current disability has been rated under Diagnostic Code 6013-6080 and 6013-6066 for over 20 years and is afforded protection under 38 U.S.C. § 1195; 38 C.F.R. § 3.95. However, the Board finds that a change in the Diagnostic Code will not result in a reduction of the current disability rating or severance of service connection. Therefore, the Board finds that a change in the Diagnostic Code does not violate the Veteran’s rights under 38 U.S.C. § 1159. Diagnostic Code 6013 provides open angle glaucoma is to be evaluated under the General Rating Formula for Diseases of the Eye with a minimal evaluation of 10 percent disabled if continuous medication is required. The criteria under 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. During the pendency of the Veteran’s appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address the organics of special sense and schedule of ratings-eye. 83 Fed. Reg. 15316 (April 10, 2018). The final rule went into effect May 13, 2018. As noted above, 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. Under both the former and revised criteria, a 10 percent disability rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. Both versions of the criteria also provide for an alternative basis for the evaluation if it results in a higher disability rating. Under the former criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate the disability 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. The Board also notes that in the May 2018 changes also included a change to the Note(s) under General Rating Formula for Diseases of the Eye. Specifically, prior to the May 2018 changes, the Note provided “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.” However, subsequent to the May 2018 changes, there are now three notes under General Rating Formula for Diagnostic Codes 6000 through 6009. Note: (1) provides “For the purposes of evaluation under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note: (2) provides “examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions.” Note: (3) provides for the purposes of evaluating visual impairment due to the particular condition, refer to 38 C.F.R. §§ 4.75 through 4.78 and 4.79, Diagnostic Codes 6061-6091. 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. 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. From May 9, 2012 to July 19, 2015 An October 2012 VA examination reveals that the Veteran had color blindness and reduced vision bilaterally. 10.18.2012 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/100 20/40 or better 20/200 20/40 or better LEFT 20/100 20/40 or better 20/200 20/40 or better The October 2012 VA examination also revealed that the Veteran has a documented visual field defect. Normal Right Left Up 45 1 11 Up Temporally 55 20 26 Temporally 85 72 56 Down Temporally 85 45 42 Down 65 57 8 Down Nasally 50 37 21 Nasally 60 21 9 Up Nasally 55 22 18 The Veteran’s average concentric contraction of the visual field of each eye results in a right eye contraction of 34.375 degrees and left eye contraction of 23.875 degrees. Based on the evidence above, a disability rating in excess of 70 percent for the Veteran’s loss of visual acuity and visual field is not warranted. The Veteran’s visual acuity of 20/40 or better corrected distance bilaterally warrants a noncompensable disability rating. Additionally, the Veteran’s average contraction of the visual field of 34.375 degrees in the right eye and 23.875 degrees in the left eye warrants a 30 percent disability rating. Combining the Veteran’s results for visual acuity disability rating of noncompensable disabling and contraction of visual field disability rating of 30 percent disabling results in a combined disability rating of 40 percent disabling. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 70 percent for a loss of visual acuity and impairment of visual field. 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). From July 20, 2015 through June 7, 2018 A July 2015 VA examination reveals that the Veteran had the following visual acuity. 07.20.2015 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 15/200 20/70 10/200 20/50 LEFT 15/200 20/200 10/200 20/100 The July 2015 VA examination also revealed that the Veteran has a documented visual field defect. Normal Right Left Up 45 1 7 Up Temporally 55 12 9 Temporally 85 53 31 Down Temporally 85 27 2 Down 65 36 9 Down Nasally 50 15 4 Nasally 60 22 0 Up Nasally 55 1 2 The Veteran’s average concentric contraction of the visual field of each eye results in a right eye contraction of 20.875 degrees and left eye contraction of 8 degrees. Based on the evidence above, a disability rating in excess of 70 percent for the Veteran’s loss of visual acuity and visual field is not warranted. The Veteran’s visual acuity of 20/70 corrected distance in the right eye and 20/200 corrected distance in the left eye warrants a 40 percent disability rating. Additionally, the Veteran’s average contraction of the visual field of 20.875 degrees in the right eye and 8 degrees in the left eye warrants a 60 percent disability rating (based upon a rating of 20/200 in the left eye and 20/100 in the right eye). Combining the Veteran’s results for visual acuity disability rating of 40 percent disabling and contraction of visual field disability rating of 60 percent results in a combined disability rating of 80 percent disabling. Accordingly, the preponderance of the most probative evidence is for the claim of entitlement to a disability rating of 80 percent and no higher for a loss of visual acuity and impairment of visual field from July 20, 2015. 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). From June 8, 2018 A May 2018 VA examination reveals that the Veteran had the following visual impairments. 05.02.2018 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/200 20/50 15/200 20/40 or better LEFT 20/200 20/70 15/200 20/50 The May 2018 VA examination also revealed that the Veteran has a documented visual field defect but did not provide 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 in accordance with 38 C.F.R. § 4.77; and is therefore inadequate. The Board considered remanding the case for a copy of the documentation required under 38 C.F.R. § 4.77. However, since the RO obtained an adequate VA examination approximately one month later, the Board finds that the RO corrected the deficiency. Furthermore, as the Board has already granted the Veteran’s increased disability rating from July 20, 2015; the effective date of the Veteran’s increased disability rating has also become moot. A June 2018 VA examination reveals that the Veteran had the following visual impairments. 06.08.2018 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/50 20/50 20/200 20/50 LEFT 20/200 20/200 20/200 20/200 The June 2018 VA examination also revealed that the Veteran has a documented visual field defect. Normal Right Left Up 45 1 3 Up Temporally 55 4 14 Temporally 85 20 25 Down Temporally 85 30 15 Down 65 20 10 Down Nasally 50 20 10 Nasally 60 15 10 Up Nasally 55 1 10 The Veteran’s average concentric contraction of the visual field of each eye results in a right eye contraction of 13.875 degrees and left eye contraction of 12.125 degrees. Based on the evidence above, a disability rating in excess of 80 percent for the Veteran’s loss of visual acuity and visual field is not warranted. The Veteran’s visual acuity of 20/50 corrected distance in the right eye and 20/200 corrected distance in the left eye warrants a 30 percent disability rating. Additionally, the Veteran’s average contraction of the visual field of between 6 to 15 degrees bilaterally warrants a 70 percent disability rating. Combining the Veteran’s results for visual acuity disability rating of 30 percent disabling and contraction of visual field disability rating of 70 percent results in a combined disability rating of 80 percent disabling. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 80 percent for a loss of visual acuity and impairment of visual field. 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.