Citation Nr: 21028400 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-49 213 DATE: May 11, 2021 ORDER Entitlement to a rating in excess of 10 percent for pseudophakia with secondary membranous opacity of both eyes is denied. FINDING OF FACT The Veteran's pseudophakia with secondary membranous opacity of both eyes results in corrected distance visual acuity of 20/20 or better for both eyes, and concentric contraction of visual field with remaining visual field of 46 to 60 degrees. The evidence of record does not show any incapacitating episodes during the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for pseudophakia with secondary membranous opacity of both eyes have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 4.7, 4.79 Diagnostic Codes (DCs) 6026-6066, 6080. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which provided an increased 10 percent rating for pseudophakia with membranous opacities, effective June 24, 2013. This claim was previously before the Board in May 2019, when the issue was remanded for an updated examination with an opinion regarding the Veteran's visual field defect. The May 2019 decision additionally remanded the issue of entitlement to an effective date prior to June 24, 2013 for the grant of an increased 10 percent rating for the eye disabilities for the issuance of a Statement of the Case (SOC). The RO issued the SOC in October 2020. The record does not show that the Veteran submitted a substantive appeal of this issue. In a May 2015 written submission to VA, the Veteran requested a representative to assist him with his claim. In a February 2019 letter, the Board provided him with information regarding how he could appoint a valid representative in the current case. In March 2019, the Veteran responded that he wished to represent himself, and he has not submitted any executed form (either a VA Form 21-22 or a VA Form 21-22a) appointing a valid representative at any time. Therefore, the Board will proceed with the understanding that the Veteran is appearing pro se. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran has not submitted a formal TDIU claim and a claim for TDIU is not reasonably raised by the record as the Veteran has reported "normal" vision post-cataract surgery. 1. Entitlement to a rating in excess of 10 percent for pseudophakia with secondary membranous opacity of both eyes is denied. The Veteran contends that his service-connected bilateral eye condition warrants a rating in excess of 10 percent. The Board addressed the Veteran's contentions in more depth in the May 2019 remand. On his June 2013 claim the Veteran stated that he had never argued that his cataract surgeon "didn't do a great job, or that [his] vision was not normal." He stated that his "point of contention" was that his intraocular implant lenses were not his "original eye lenses" and that Flonase caused the damage that required the implantation of the lenses. He further explained that his "eyes [would] begin clouding up again at some point in the next few years" and he would "need additional procedures to open a passageway for light to hit the lens." In the May 2019 remand, the Board notes that disability ratings are provided for the average impairment of earning capacity resulting from the disability, and that disabilities are rated based on "current" symptoms. Any concerns regarding the deterioration of the implanted lenses or that it may "cause eventual blindness" must be addressed when those symptoms occur. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). The Veteran's bilateral pseudophakia with membranous opacities are rated 10 percent disabling under 38 C.F.R. § 4.79, DC 6027, for cataract. 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 distinguish preoperative and postoperative cataracts. For postoperative cataracts, both the former and revised rating criteria distinguish between pseudophakia and aphakia. If there is a replacement lens present (pseudophakia), then the former criteria instructed to evaluate based on visual impairment whereas the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. If there is no replacement lens (aphakia), both the former and revised criteria instruct to evaluate based on aphakia, which is DC 6029. Here, the Veteran has replacement lenses. The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition 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 General Rating Formula defines [Note (1)] an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that 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) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76 (b)(1). Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76 (c). On October 31, 2013, the Veteran participated in a fee-basis (contractor) eye examination. He was diagnosed with pseudophakia and secondary membranous opacity (bilateral). The medical history section noted that the Veteran had right eye cataract surgery in 2002 and left eye surgery in 2003. He had been prescribed Flonase from 1996 and around 1999 or 2000 his vision "went bad" and he was diagnosed with an early form of cataracts due to his Flonase use. His corrected distance vision was 20/40 or better (examination reports from this period did not include the option for 20/20 or better). He did not have diplopia. On slit lamp evaluation, he had bilateral intraocular lenses in the posterior chamber and 2+ opacified posterior capsule. He had a normal fundus (internal) eye evaluation. The examiner selected that the Veteran did not have a visual field defect. Under the "cataract and other lens conditions" section, the examiner selected that the Veteran had postoperative cataracts with replacement intraocular lenses. He did not have aphakia or dislocation of the crystalline lens. The examiner noted that the Veteran's opacified posterior capsule was due to his cataract surgery. Under "other eye conditions" the examiner noted that the Veteran "experienced blurred vision, sensitivity to light." He did not have scarring or disfigurement and had not experienced incapacitating episodes in the prior 12 months. In the remarks section, the examiner wrote "at this time the [Veteran's] condition is quiescent." Regarding the Veteran's contraction of visual fields, the 2013 examination included visual field charts. This Board member's reading of the Goldmann perimeter visual field charts showed the Veteran's remaining left visual field was 449 degrees, divided by the 8 principal meridians, resulted in an average concentric visual field contraction of 56.125 degrees. His remaining right visual field was 427 degrees, divided by the 8 principal meridians, resulted in an average concentric visual field contraction of 53.375. Under DC 6066, for Impairment of Central Visual Acuity, corrected distance vision of 20/40 or better bilaterally warrants a noncompensable rating. Under DC 6080, for Rating Impairment of Visual Fields, bilateral concentric contraction with remaining field of 46 to 60 degrees should be evaluated as 10 percent disabling. On January 17, 2020, the Veteran participated in a second VA eye examination. He was again diagnosed with pseudophakia with secondary membranous opacity. The medical history section included "2002 required cataract surgery" after Flonase use. At onset his vision was blurry, which improved after cataract surgery. Regarding "current symptoms" the examiner wrote "resolved." His corrected distance vision was 20/20 or better bilaterally. He did not have diplopia. Slit lamp examination was normal except for bilateral PCIOL (posterior chamber intraocular lens) with PCO (posterior capsular opacification). His internal eye evaluation was normal throughout. The examiner noted that the Veteran did not have a documented visual field defect. There is no indication that visual field testing was performed. Under the "Lens Conditions" section the Veteran was noted to have bilateral post-operative cataract with pseudophakia (replacement intraocular lens). There was no dislocation of the crystalline lens or aphakia. The examiner marked that there was no decrease in visual acuity or other visual impairment. He had not had any incapacitating episodes in the prior 12 months. The Board remanded the claim for an updated VA examination because the January 2020 examination did not include visual field testing. On February 5, 2021, the Veteran participated in a third VA eye examination. He described the onset of cataract symptoms "over time," until cataract surgery. He was now "stable, no visual limitations." He denied current symptoms. He had membranous opacity of the right eye only. His corrected distance vision was 20/20 or better. He did not have diplopia. Slit lamp evaluation showed bilateral pseudophakia with right eye PCO. His internal eye examination was normal throughout. The examiner selected that the Veteran had postoperative cataracts with replacement intraocular lens without aphakia or dislocation of the crystalline lens. The examiner selected that the Veteran had "no decrease in visual acuity or other visual impairment." He did not have any incapacitating episodes in the past 12 months (under the revised criteria). Under the remarks section, the examiner wrote "very mild constricted visual field [right eye], no cause of this found on today's exam." The examiner provided an opinion that the membranous opacity of the right eye was mild and was not visually significant, and therefore could not be causing the Veteran's visual field defect. "Cause of very mild constricted visual field defect is likely to be user error, no ophthalmic reason noted on today's exam. It is less than likely that the visual field contraction is due to or began during his military service, [because there was] no indication in records of cause for visual field. Not related to Flonase use. A nexus is not established." The examiner also noted that as there were no findings of a cause of the visual field restriction, it was considered likely a "test taker error," and was "not considered valid results in comparison to the results of the manual confrontation visual fields results." The examination report included the examiner's findings regarding visual field testing. These showed remaining left visual field of 440 degrees, divided by the 8 principal meridians, resulted in an average concentric visual field contraction of 55 degrees. He also had remaining right visual field of 420 degrees, divided by the 8 principal meridians, resulted in an average concentric visual field contraction of 52.5 degrees. The Veteran did not have loss of visual field or a scotoma. Under DC 6066, for Impairment of Central Visual Acuity, corrected distance vision of 20/40 or better bilaterally warrants a noncompensable rating. Under DC 6080, for Rating Impairment of Visual Fields, bilateral concentric contraction with remaining field of 46 to 60 degrees should be evaluated as 10 percent disabling. (Continued on the next page) The record contains few treatment records, and the only eye evaluations available are from the VA examinations. The Veteran has provided lay statements that his vision was "normal" following cataract surgery, and has made no complaints about visual field impairment. During the 2013 and 2021 VA examinations, the Veteran's visual field testing showed mild contraction warranting a 10 percent rating under DC 6080. During the 2013, 2020, and 2021 examinations, the Veteran's visual acuity warranted a noncompensable rating. The record does not demonstrate, and the Veteran has not argued, that he has incapacitating episodes as a result of his pseudophakia with membranous opacities. As such, the Board finds that a rating in excess of 10 percent is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. Stubbs, 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.