Citation Nr: 21027852 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 13-34 777 DATE: May 7, 2021 ORDER Entitlement to an initial rating higher than 10 percent for bilateral glaucoma and cataracts, and right eye pterygium, is denied. FINDING OF FACT The Veteran's bilateral glaucoma required continuous medication; the evidence does not indicate the bilateral glaucoma and cataracts, and right eye pterygium manifested with decreased visual acuity or other visual impairment, or incapacitating episodes. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but not higher for bilateral glaucoma and cataracts, and right eye pterygium have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6013. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to August 1983, and July 1988 to July 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, April 2018, and July 2020, the Board remanded this matter for further development. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to an initial rating higher than 10 percent for bilateral glaucoma and cataracts, and right eye pterygium The Veteran's bilateral glaucoma and cataracts, and right eye pterygium are assigned a noncompensable rating under 38 C.F.R. § 4.79, Diagnostic Code 6013, for glaucoma. Throughout the appeal period, the Veteran has reported decreased blurry vision, sensitivity to light, and itchiness. 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. 83 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 using both the former and revised schedular rating criteria, although an increased rating based on the revised criteria cannot predate the effective date of the amendments. With regard to visual impairment, the May 2018 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. The rating 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 rating 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 38 C.F.R. § 4.25. The rating 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. Subject to the provisions of 38 C.F.R. § 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 rating the service-connected visual impairment. 38 C.F.R. § 4.75(c). Diagnostic Code 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 the poorer eye is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Both the former and revised criteria under Diagnostic Code 6013 for open-angle glaucoma indicate that a minimum 10 percent rating was warranted if continuous medication was required. Under the former criteria, Diagnostic Code 6013 instructed to evaluate pursuant to visual impairment due to open-angle glaucoma. Under the revised criteria, Diagnostic Code 6013 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. Under the former criteria, Diagnostic Code 6034 instructed to evaluate pterygium based on visual impairment, disfigurement, (Diagnostic Code 7800), or conjunctivitis (Diagnostic Code 6018), depending on the particular findings. Under the revised criteria, Diagnostic Code 6034 instructs to evaluate pterygium under the General Rating Formula for Diseases of the Eye, disfigurement (Diagnostic Code 7800), or conjunctivitis (Diagnostic Code 6018), depending on the particular findings, and to combine in accordance with 38 C.F.R. § 4.25. The General Rating Formal for Diseases of the Eye instructs to rate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher rating. A 10 percent rating is warranted where there are documented incapacitating episodes requiring at least one but less than three treatment visits for an eye condition during the past 12 months. A 20 percent rating is warranted where there are documented incapacitating episodes requiring at least three but less than five treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted where there are 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 where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months. 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, Note (1). 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. 38 C.F.R. § 4.79, Note (2). Tor the purposes of rating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091. 38 C.F.R. § 4.79, Note (3). The Board notes that the medical evidence does not indicate any decrease in visual acuity or muscle function impairments. At a May 2012 VA examination, the Veteran reported that the glaucoma was stable. The examiner diagnosed bilateral glaucoma, which required continuous medication. Mild cataracts were noted. Corrected distance vision measured 20/40 or better bilaterally. Slit lamp testing showed 1.25 millimeter of pterygium on the right cornea. The Veteran had a visual field defect. The Goldmann eye chart was not available. The right eye pterygium did not cause any decrease in visual acuity or other visual impairment, and there was no scarring or disfigurement. The bilateral glaucoma did not cause any decrease in visual acuity or other visual impairment, and there was no scarring or disfigurement. At an October 2016 VA examination, the Veteran reported that the glaucoma was stable. The examiner diagnosed bilateral cataracts and glaucoma, and right eye pterygium. The cataracts required continuous medication. Corrected distance vision measured 20/40 or better bilaterally. Slit lamp testing showed bilateral pinguecula on the conjunctiva, bilateral nuclear sclerosis on the lenses, and nasal pterygium right side. The Veteran had a visual field defect. The Goldmann eye chart was not available. The right eye pterygium did not cause any decrease in visual acuity or other visual impairment, and there was no scarring or disfigurement. The bilateral cataracts and glaucoma did not cause any decrease in visual acuity or other visual impairment. There were no incapacitating episodes. At a September 2019 VA examination, the Veteran reported blurry vision, sensitivity to light, and itchiness. His eyes itched and felt dry every two to three days, and his vision blurred a lot. Corrected distance vision measured 20/20 or better bilaterally. Slit lamp testing showed punctate epithelial erosion with 2.25 millimeters of nasal pterygium on the right side. There was bilateral nuclear sclerosis on the lenses. There was no visual field defect. The examiner diagnosed bilateral cataracts, right eye pterygium, and dry eye in the right eye. There was no glaucoma on examination. The right eye pterygium and dry eye did not cause any decrease in visual acuity or other visual impairment. The dry eye was not a disorder of the lacrimal apparatus. The bilateral preoperative cataracts did not cause any decrease in visual acuity or other visual impairment. There was no scarring or disfigurement, or any incapacitating episodes. The Board notes the examiner did not have access to the record for the examination. At a January 2021 VA examination, the Veteran reported no current symptoms and denied blurry vision. The examiner diagnosed right eye pterygium and a left eye preoperative cataract. As for the glaucoma, there was no evidence on examination. However, the Veteran was glaucoma suspect with no definitive diagnosis. Corrected distance vision measured 20/20 bilaterally. There was no visual field defect. Slit lamp testing showed right eye pterygium and a cortical cataract in the left eye. The examiner found that the pterygium and cataract did not cause any decrease in visual acuity or other visual impairment. There was no scarring or disfigurement, or any incapacitating episodes. After review of the record, the Board finds a rating higher 10 percent is not warranted at any point during the appeal period. At the outset, the Board notes that the Veteran's distance vision has remained correctable to 20/40 or better. While the Board acknowledges the Veteran's reports of blurry vision, sensitivity to light, and itchiness, those statements do not constitute incapacitating episodes supporting a higher rating under the rating criteria. Although the September 2019 and January 2021 VA examiners found that a diagnosis for glaucoma was not warranted, they indicated that the Veteran was suspected of having glaucoma due to the optic nerves and family history. The evidence shows that the Veteran used continuous medication throughout the appeal period to treat the elevated eye pressure. Significantly, the bilateral eye disability has not been shown to manifest in decreased visual acuity or other visual impairment, or to involve any incapacitating episodes. Therefore, the Board finds that the evidence does not demonstrate that the service-connected disability meets or more nearly approximates the criteria for a higher rating under Diagnostic Code 6013, 6034, or any other potentially applicable diagnostic code. The Board acknowledges the Veteran's contention that at least three but less than five incapacitating episodes occurred in 2019. However, a review of the record shows two treatment visits in 2019, one of which was an annual eye examination. At both visits, the Veteran reported no visual changes or ocular issues. As at least three incapacitating episodes were not demonstrated by the evidence of record, a higher rating is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against a finding that an initial rating higher than 10 percent is warranted for the Veteran's service-connected eye disability. Therefore, the claim for an increased rating must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.