Citation Nr: 21026328 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-41 578 DATE: April 30, 2021 ORDER An initial disability rating in excess of 10 percent for right eye glaucoma is denied. FINDING OF FACT Throughout the period on appeal, the average concentric contraction of the Veteran’s visual field was, at worst, 31 degrees in the right eye. Corrected distance vision was, at worst, 20/40 in the right eye. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for right eye glaucoma are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code 6013-6080. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1973 to July 1976 and from September 1976 to May 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and was previously remanded by the Board in December 2019 and October 2020. The Board’s October 2020 remand directed the RO to afford the Veteran a new VA examination to determine the current severity of his service-connected right eye disability. The Board finds that there has been substantial compliance with its 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 disability rating in excess of 10 percent for right eye glaucoma The Veteran seeks a higher rating for his service-connected right eye glaucoma, which is currently rated as 10 percent disabling under Diagnostic Code 6013-6080, which is analogous to open-angle glaucoma (Diagnostic Code 6013) under the criteria for impairment of visual fields (Diagnostic Code 6080, visual field defects). 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). 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. As the amended regulations went into effect during the period on appeal, both the former and revised criteria under Diagnostic Code 6080 will be considered when evaluating that specific rating period. Both the former and revised criteria provide for consideration of visual impairment. 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. 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). Under both the former and revised criteria for Diagnostic Code 6066, a 10 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/50, and vision in the other eye is 20/40; when visual acuity in one eye (the poorer eye) is 20/70, and vision in the other eye is 20/40; or when visual acuity in one eye (the poorer eye) is 20/100, and vision in the other eye is 20/40. 38 C.F.R. § 4.79. 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. Under both the former and revised criteria for Diagnostic Code 6080, when the remaining visual field is 46 to 60 degrees unilaterally, a 10 percent disability rating is assigned, or the 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, a 10 percent disability rating is assigned, or the affected eye may be evaluated as 20/70. Id. When the remaining visual field is 16 to 30 degrees unilaterally, a 10 percent disability rating is assigned, or the affected eye may be evaluated as 20/100. Id. When the remaining visual field is 6 to 16 degrees unilaterally, a 20 percent disability rating is assigned, or the affected eye may be evaluated as 20/200. Id. Based on a review of the relevant evidence, the Board finds that an initial disability rating in excess of 10 percent for right eye glaucoma is not warranted. Specifically, the medical evidence of record, to include April 2016 and November 2020 VA examinations and post-service VA treatment records, reflects corrected distance measuring no more than 20/40 in the right eye. Further, the medical evidence of record is silent for evidence of visual acuity of at least 20/50 in the right eye. As the Veteran is only service-connected for his right eye, the visual acuity of his non-service-connected left eye is considered to be 20/40 for purposes of evaluating righteye visual impairment. 38 C.F.R. § 4.75(c). When applying visual acuity of 20/40 for the right eye and 20/40 for the non-service-connected left eye, under Diagnostic Code 6066, a noncompensable (zero percent) rating is warranted for visual acuity. Additionally, the 2016 and 2020 VA examinations reflects evidence of a visual field defect. For the 2016 VA examination, Goldmann perimetry as to the Veteran’s right eye showed the remaining visual fields were, in degrees: temporally 20, down temporally 40, down 20, down nasally 40, nasally 45, up nasally 43, up 29, and up temporally 15. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 252 degrees. Dividing 252 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 31 degrees of the visual field for the right eye. For the 2020 VA examination, Goldmann perimetry as to the Veteran’s right eye showed the remaining visual fields were, in degrees: temporally 72, down temporally 70, down 40, down nasally 50, nasally 50, up nasally 50, up 45, and up temporally 50. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 437 degrees. Dividing 427 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. 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. Under remaining visual field criteria, the Veteran’s right eye would warrant a 10 percent rating, as his remaining visual field was shown to be 31 degrees during the 2016 VA examination and 53 degrees during the 2020 VA examination. However, remaining visual field criteria also instructs to evaluate the Veteran’s right eye as 20/100, as his average remaining visual field was found to be 31 degrees during the 2016 VA examination (when remaining visual field is 31 to 45 degrees, each affected eye is evaluated as 20/100). When applying visual acuity of 20/100 for the right eye and 20/40 for the non-service-connected left eye to determine visual field defect, a 10 percent rating would be warranted. Thus, taking the higher of the two evaluations, 10 percent based on the rating for remaining visual field of 31 to 45 degrees for the right eye, or 10 percent based on applying visual acuity of 20/100 for the right eye and 20/40 for the non-service-connected left eye, here, both instances warrant no higher than a 10 percent disability rating. Thus, the currently assigned 10 percent disability rating for right eye visual field defect is appropriate and a higher disability rating for visual field defect is not warranted. 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 zero percent rating for his right eye visual acuity impairment with his 10 percent rating for his right eye visual field defect, a 10 percent rating is achieved. As the Veteran’s right eye disability is not productive of corrected distance vision of at least 20/50 in the right eye or right eye remaining visual field of 30 degrees or less, the currently assigned 10 percent initial disability rating for right eye glaucoma under Diagnostic Code 6013-6080 is appropriate.   In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial disability rating in excess of 10 percent for right eye glaucoma, 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.