Citation Nr: 21027845 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 12-16 860 DATE: May 7, 2021 ORDER A disability rating in excess of 50 percent for chronic open angle glaucoma with old branch vein occlusion with accompanying retinal ischemia, astigmatism, and presbyopia from December 3, 2013 is denied. FINDING OF FACT Throughout the period on appeal, the average concentric contraction of the Veteran's visual field was, at worst, 26 degrees in the right eye and 17 degrees in the left eye. Corrected distance vision was, at worst, 20/40 in the right eye and 20/40 in the left eye. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for chronic open angle glaucoma with old branch vein occlusion with accompanying retinal ischemia, astigmatism, and presbyopia are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code 6013-6080 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States U.S. Navy from June 1981 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and was previously remanded by the Board in June 2020 and January 2021. In March 2019, the Veteran testified at a travel Board hearing before a Veterans Law Judge who is no longer available. The Veteran was offered a replacement hearing before another Veterans Law Judge, and she declined a replacement hearing in March 2020. As such, the appeal has been reassigned to the undersigned Veterans Law Judge and has been returned to the Board for further consideration. The Board's January 2021 remand directed the RO to send the Veteran's representative a copy of the October 2020 supplemental statement of the case to her current mailing address. The Board finds that there has been substantial compliance with its January 2021 remand directives, and it will proceed with adjudication of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). . Increased 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 a disability rating in excess of 50 percent for chronic open angle glaucoma with old branch vein occlusion with accompanying retinal ischemia, astigmatism, and presbyopia from December 3, 2013 The Veteran seeks a higher rating for her chronic open angle glaucoma with old branch vein occlusion with accompanying retinal ischemia, astigmatism, and presbyopia (hereinafter "bilateral eye disability") from December 3, 2013. This disability is currently rated as 50 percent disabling under Diagnostic Code 6013-6018, which is analogous to open-angle glaucoma (Diagnostic Code 6013) under the criteria for visual field defects (Diagnostic Code 6018). Further, the Veteran contends that her bilateral eye disability requires referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation. 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 provide for consideration of visual impairment, which is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 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. Under both the former and revised criteria for Diagnostic Code 6066, visual acuity, a 60 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/200, and vision in the other eye is 20/100; when visual acuity in one eye (the poorer eye) is 15/200, and vision in other eye is 20/100; or when visual acuity in one eye (the poorer eye) is 10/200, and vision in the other eye is 20/100. 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 bilaterally or unilaterally, a 10 percent disability rating is assigned, or each 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 or bilaterally, 10 percent and 30 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/70. Id. When the remaining visual field is 16 to 30 degrees unilaterally or bilaterally, 10 percent and 50 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/100. Id. When the remaining visual field is 6 to 16 degrees unilaterally or bilaterally, 20 percent and 70 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/200. Id. 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). Based on a review of the relevant evidence, the Board finds that, for the period on appeal from December 3, 2013, a rating in excess of 50 percent for bilateral eye disability is not warranted. Specifically, the January 2015 and October 2020 VA examinations, as well as post-service VA and private treatment records, reflect corrected distance measuring no higher than 20/40 in the right eye and 20/40 in the left eye. The medical evidence does not show visual acuity of at least 20/50 in the Veteran's right or left eye. Therefore, when applying visual acuity of 20/40 for the right eye and 20/40 for the left eye, under Diagnostic Code 6066, a noncompensable (zero percent) rating would be warranted for visual acuity. Additionally, post-service VA treatment records from December 2013 and the January 2015 and October 2020 VA examinations reflect evidence of bilateral visual field defect. Regarding the December 2013 VA treatment record, Goldmann perimetry as to the Veteran's right eye showed the remaining visual fields were, in degrees: 48 temporally, 38 down temporally, 29 down, 25 down nasally, 18 nasally, 20 up nasally, 15 up, and 16 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 209. Dividing 209 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 26 degrees of the visual field for the right eye. Goldmann perimetry testing as to the Veteran's left eye showed the remaining visual fields were, in degrees: 18 temporally, 25 down temporally, 22 down, 40 down nasally, 48 nasally, 19 up nasally, 18 up, and 12 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 202 degrees. Dividing 202 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 25 degrees of the visual field for the left eye. For the January 2015 VA examination, Goldmann perimetry as to the Veteran's right eye showed the remaining visual fields were, in degrees: 37 temporally, 40 down temporally, 30 down, 25 down nasally, 20 nasally, 24 up nasally, 18 up, and 25 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 291. Dividing 291 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 27 degrees of the visual field for the right eye. Goldmann perimetry testing as to the Veteran's left eye showed the remaining visual fields were, in degrees: 40 temporally, 30 down temporally, 10 down, 10 down nasally, 9 nasally, 10 up nasally, 0 up, and 25 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 134 degrees. Dividing 134 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 17 degrees of the visual field for the left eye. For the October 2020 VA examination, Goldmann perimetry as to the Veteran's right eye showed the remaining visual fields were, in degrees: 70 temporally, 70 down temporally, 50 down, 45 down nasally, 50 nasally, 30 up nasally, 30 up, and 50 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 395. Dividing 395 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 49 degrees of the visual field for the right eye. Goldmann perimetry testing as to the Veteran's left eye showed the remaining visual fields were, in degrees: 40 temporally, 50 down temporally, 40 down, 25 down nasally, 10 nasally, 25 up nasally, 10 up, and 50 up temporally. Adding the remaining visual field at each principal meridian results in a total remaining visual field of 245 degrees. Dividing 245 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 31 degrees of the visual field for the left 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. As the Veteran's remaining visual field during the period on appeal was, at worst, 25 degrees, in her right eye and 17 degrees in her left eye, a 50 percent rating is warranted for bilateral visual field defect with remaining visual fields between 16 and 30 degrees. However, remaining visual field criteria also instructs to evaluate the Veteran's right and left eyes each as 20/100, as her average remaining visual field is 25 degrees in her right eye and 17 degrees in her left eye (when remaining visual field is 16 to 30 degrees, each affected eye is evaluated as 20/100). When applying visual acuity of 20/100 for the right eye and 20/100 for the left eye to determine visual field defect, a 50 percent rating would be warranted. Thus, both evaluations (based on a bilateral rating for remaining visual fields between 16 and 30 degrees or based on applying visual acuity of 20/100 for the right eye and 20/100 for the left eye) result in a 50 percent rating for bilateral visual acuity. 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 corresponding visual acuity impairment throughout the period on appeal of zero percent with her 50 percent rating for bilateral visual field defect, a 50 percent rating is achieved. Therefore, the currently assigned 50 percent rating for the period on appeal from December 3, 2013 is appropriate, and the Veteran is not entitled to a higher rating. The Board notes that, while the medical evidence of record demonstrates significant improvement in the Veteran's bilateral visual fields during the October 2020 VA examination, the Board will not disturb the 50 percent disability rating currently assigned based upon the visual acuity and visual field defects found during the December 2013 ophthalmology examination in the Veteran's post-service VA treatment records, as well as during the January 2015 VA examination. The Board acknowledges the Veteran's contention that her bilateral eye disability requires referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2019). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular rating is adequate, and referral is not required. Id.; 38 C.F.R. § 3.321(b)(1). The Board finds that the schedular evaluation of the Veteran's bilateral eye disability is adequate. Here, the Veteran's chronic open-angle glaucoma, visual field defects, photophobia, old branch vein occlusion with accompanying retinal ischemia, astigmatism, and presbyopia is currently rated as 50 percent disabling. While the Board acknowledges the Veteran's report that her bilateral eye disability produces severe visual impairment, eye pain, and right eye ptosis, the Board notes that separate ratings were granted for right eye ptosis and bilateral eye pain in the June 2020 Board decision. As to the Veteran's symptoms of visual acuity and visual field defects, Diagnostic Code 6080 contemplates these eye symptoms, as it addresses the Veteran's bilateral visual field defect, as well as her bilateral corrected distance, and when combined, achieves a 50 percent disability rating based on 20/40 corrected distance vision in the right and left eyes, as well as bilateral visual field defect between 16 and 30 degrees. Further, the most recent VA examination in 2020 shows improvement in the Veteran's bilateral visual field defect, with remaining visual field of 49 degrees in the right eye and 31 degrees in the left eye, which corresponds to only a 20 percent rating for visual field defect (10 percent for the right eye with remaining visual field of 46 to 60 degree and 10 percent for the left eye with remaining visual field of 31 to 45 degrees). Moreover, the 2020 VA examiner found no current evidence of astigmatism, chronic conjunctivitis, or retinal ischemia. The Board has stated that it will not disturb the 50 percent disability rating currently assigned for the Veteran's bilateral eye disability despite a showing of bilateral eye improvement. Therefore, the Board finds that the rating schedule is adequate to evaluate the Veteran's bilateral eye disability, and referral for extraschedular consideration is not in order. In sum, as the Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 50 percent for chronic open angle glaucoma with old branch vein occlusion with accompanying retinal ischemia, astigmatism, and presbyopia from December 3, 2013, 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.