Citation Nr: 21028982 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-07 257 DATE: May 12, 2021 ORDER Prior to March 30, 2015, a rating higher than 10 percent for left eye disability is denied. As of March 30, 2015, ratings higher than 20 percent for left eye diplopia and/or higher than 10 percent for left eye glaucoma are denied. FINDINGS OF FACT 1. Prior to March 30, 2015, the Veteran's left eye disability manifested as average concentric contraction of the left eye visual field to 20 degrees, diplopia with gaze greater than 40 degrees up, corrected visual acuity of no less than 20/40, and no incapacitating episodes; his glaucoma required continuous medication for treatment. 2. As of March 30, 2015, the Veteran's left eye disability manifests as average concentric contraction of the left eye visual field to 53.625 degrees, diplopia at 21 to 30 degrees laterally and 31 to 40 degrees up and down, and corrected visual acuity of no less than 20/40; he discontinued his glaucoma medication in approximately 2017. CONCLUSIONS OF LAW 1. Prior to March 30, 2015, the criteria for a rating higher than 10 percent for left eye disability were not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Code 6013. 2. As of March 30, 2015, the criteria for ratings higher than 20 percent for left eye diplopia and/or higher than 10 percent for left eye glaucoma 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1961 to March 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which in relevant part granted service connection for glaucoma with diplopia. In a January 2016 rating decision, this disability was recharacterized as left eye glaucoma, arcuate scotoma due to glaucoma, and diplopia, status post left-sided zygomatic arch/orbital fracture, and a 10 percent rating was assigned for the entire appeal period (i.e., August 14, 2014). In February 2019, the Board remanded this case for further development. In December 2020, the Board separated the Veteran's left eye disability into residuals of a left orbital fracture, to include muscle damage resulting in diplopia, and left eye traumatic glaucoma. The Board denied a compensable initial rating for left orbital fracture prior to March 30, 2015, and assigned a 20 percent rating effective March 30, 2015. The issue of an increased rating for left traumatic glaucoma was remanded for further development. This was effectuated in a February 2021 rating decision. As discussed below, 38 C.F.R. § 4.78 provides a mechanism for combining ratings based on a visual field defect and diplopia in a single service-connected eye instead of issuing separate compensable ratings. As this results in a single disability rating based on all impairments of visual acuity, visual fields, and/or muscle function, the claim for an increased rating for left eye disability necessarily encompasses both the glaucoma and the diplopia, as reflected on the title page. The Veteran raised the issue of entitlement to a total disability rating due to individual unemployability due to service-connected disability (TDIU) during the pendency of this claim. The record reflects a grant of TDIU throughout the entire appeal period. See October 2020 rating decision. As this is a full grant of the issue of TDIU, it is no longer before the Board. 1. Entitlement to an increased for left eye disability. The Veteran was originally granted service connection for glaucoma with diplopia in the March 2015 rating decision on appeal. At that time, he was assigned a noncompensable (0 percent) rating effective August 14, 2014. This initial rating was increased to 10 percent for the entire period in a January 2016 rating decision. A December 2020 Board decision separated the Veteran's left eye disability into residuals of a left orbital fracture, to include muscle damage resulting in diplopia and left eye traumatic glaucoma. The Board denied a compensable initial rating for left orbital fracture prior to March 30, 2015, and assigned a 20 percent rating effective March 30, 2015, both under DC 6090. The issue of an increased rating for left traumatic glaucoma was remanded for further development. This was effectuated in a February 2021 rating decision. The Veteran's left eye glaucoma is currently rated under diagnostic code (DC) 6013. 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. 15,316 (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. Under the former criteria, DC 6013 instructed the rater to evaluate open-angle glaucoma based on visual impairment due to open-angle glaucoma with a 10 percent minimum rating if continuous medication is required. 38 C.F.R. § 4.79. Under the revised criteria, DC 6013 instructs the rater to evaluate open-angle glaucoma under the General Rating Formula for Diseases of the Eye with a 10 percent minimum rating if continuous medication is required. 38 C.F.R. § 4.79. Under the revised criteria, the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 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 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 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, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations 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) 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. The criteria for visual impairment, including impairments of visual acuity, visual fields, and/or muscle function, have remained unchanged. Impaired visual acuity is rated under diagnostic codes 6061-6066 based on the best corrected distance vision. 38 C.F.R. §§ 4.76, 4.79. Impairment of visual fields are rated under DCs 6080-6081 based on the average concentric contraction of the visual field of each eye; asymmetric impairments are converted to their visual acuity equivalents. 38 C.F.R. §§ 4.77, 4.79. Impaired muscle function is rated under DCs 6090-6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.78, 4.79. When diplopia extends beyond more than one quadrant or range of degrees, evaluate diplopia based on the quadrant and degree range that provides the highest evaluation. 38 C.F.R. § 4.78(b)(2). When diplopia exists in two separate areas of the same eye, increase the equivalent visual acuity under diagnostic code 6090 to the next poorer level of visual acuity, not to exceed 5/200. 38 C.F.R. § 4.78(b)(3). When only one eye is service connected, the other eye considered 20/40 for rating purposes regardless of the actual level of impairment. 38 C.F.R. § 4.75(c). In this case, the Veteran is only service connected for a left eye disability. Therefore, his right eye is considered 20/40 regardless of actual visual impairment. Prior to March 30, 2015 In his August 2014 statement, the Veteran reported double vision when looking up, left eye glaucoma, and vision loss. An August 2014 private treatment record notes well-controlled suspected glaucoma (left worse than right) and diplopia on up gaze. His corrected vision was 20/30 bilaterally with pinhole to 20/25-1 on the right and 20/25 on the left. His visual fields were full bilaterally. An undated private treatment record submitted in January 2015 noted deterioration of left optic nerve due to high pressure in the eye and causing dizziness and nausea when looking up. A January 2015 private treatment record noted the Veteran's complaints of blurred vision at distance and worsening double vision on up gaze. He wore contact lenses, but did not have eyeglasses. He had right eye near monovision. His corrected visual acuity was 20/20 bilaterally. His pupils were equal, round, and reactive to light. There was no afferent pupillary defect. His visual fields were full to finger count. His extraocular movements were full and unrestricted. He was diagnosed with presbyopia and open-angle glaucoma. A January 2015 eye conditions disability benefits questionnaire (DBQ) shows left eye diplopia, left eye glaucoma, bilateral presbyopia and myopia, and an optic nerve condition. He took medication to treat his glaucoma. His bilateral uncorrected distance and near vision was 20/80, all corrected to 20/20. His pupils were round and reactive to light. No afferent pupillary defect was present. He did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. He did not have a corneal irregularity that resulted in severe astigmatism. He had occasional diplopia at greater than 40 degrees up. His diplopia was not correctable with standard spectacle correction or with special prismatic correction. This examiner noted that due to the non-concomitant nature of his diplopia, prism would create diplopia in the Veteran's primary gaze. An external eye exam was normal bilaterally. Internally, the Veteran had left traumatic glaucoma. He had a visual field defect as described below: Meridian Normal Right Eye Left Eye Up 45 20 25 Up temporally 55 30 5 Temporally 85 25 5 Down temporally 85 30 30 Down 65 30 30 Down nasally 50 30 25 Nasally 60 30 25 Up nasally 55 30 15 Total: 500 225 160 Average Concentric Contraction 62.5 28.125 20 He had loss of a visual field described as superior arcuate defects on the left. He had a scotoma affecting at least one-quarter of the visual field on the left. He did not have legal (statutory) blindness based on visual field loss. He had traumatic glaucoma in the left eye that required continuous medication for treatment. His visual impairment was attributable to his glaucoma. His glaucoma did not cause scarring or disfigurement. The Veteran did not have any scarring or disfigurement attributable to an eye condition. He had not had any incapacitating episodes attributable to an eye condition in the prior twelve months. His eye conditions did not impact his ability to work. A February 2015 private treatment record noted corrected visual acuity with current contacts was 20/60 on the right and 20/20-1 on the left. His optic nerve exam showed a cup-to-disc ration of .5 on the right and .4 sloping on the left. His visual fields were full to finger count bilaterally. Based on the above, prior to March 30, 2015, the Veteran's left eye disability manifested as average concentric contraction of the left eye visual field to 20 degrees, diplopia with gaze greater than 40 degrees up, corrected visual acuity of no less than 20/40, and no incapacitating episodes. He treated his glaucoma with continuous medication. Under DC 6080, unilateral (because his right eye is not service connected) a visual field defect with remaining field of 16 to 30 degrees warrants a 10 percent rating. 38 C.F.R. § 4.79. Thus, a rating based on visual field defect would satisfy the 10 percent minimum under both versions of DC 6013 for glaucoma treated with continuous medication. The severity of the Veteran's diplopia fails to rise to a compensable degree under DC 6090, which requires constant diplopia at 30 degrees or less to warrant a compensable rating when paired with the 20/40 assigned to the nonservice-connected right eye. See 38 C.F.R. §§ 4.75(c), 4.79, DC 6066, 6090. This is not shown here. Thus, a rating higher than the current 10 percent rating for left eye disability prior to March 30, 2015, is not warranted. As of March 30, 2015 In a March 30, 2015 letter, the Veteran's private doctor opined that the Veteran had residual binocular diplopia from damage to his left inferior rectus muscle caused by his in-service injury. The Veteran was orthotropic in primary gaze. He had three prisms of left hypotropia in left gaze, but was orthotropic in down gaze. He had six prisms of esotropia in left gaze, but was orthotropic in right gaze. He had two prisms of left hypotropia at near. This meant that he had daily diplopia when he looked up and to the left. This was permanent and untreatable. An April 2015 VA treatment record notes left eye diplopia when looking to the side and upwards. In an April 2015 statement, the Veteran stated that his eye condition was not occasional or correctable. He reported daily diplopia and asked that this be considered separately from his left-sided zygomatic arch/orbital fracture. An August 2015 VA treatment record notes uncorrected visual acuity of 20/50 in the right (with pinhole to 20/25-2) and 20/50-2 in the left (with pinhole to 20/30-2). His extraocular movements and visual field were full bilaterally. A slit lamp exam showed dermatochalasis bilaterally on the lids and lashes. He had cataracts on both lenses. A dilated fundus exam showed cup-to-disc 0.7/0.6 sharp. The diagnoses were glaucoma, diplopia, refractive error, and pre-surgical cataracts. An April 2016 VA treatment record notes worsened left eye diplopia when looking to the side. An October 2018 VA treatment record notes intermittent diplopia when the Veteran gazes left. In a December 2017 statement, the Veteran reported progressively worsening uncorrectable diplopia and impaired eyesight. A May 2019 VA treatment record notes possible ocular migraines with the Veteran describing symptoms of vitreous floaters and flashes of shimmering light. A November 2019 eye conditions DBQ notes the Veteran's report of diplopia, but no current symptoms of left eye traumatic glaucoma or posterior chamber intraocular lenses. His glaucoma had been treated with laser peripheral iridotomy. He had treated his glaucoma with medication, but discontinued use in 2017. His uncorrected distance visual acuity was 20/40 bilaterally, corrected to 20/20 on the right and 20/25 on the left. His uncorrected near visual acuity was 20/40 on the right and 20/50 on the left, corrected to 20/20 the right and 20/25 on the left. His pupils were round and reactive to light. No afferent pupillary defect was present. He did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. He did not have a corneal irregularity that resulted in severe astigmatism. He had constant diplopia at 21 to 30 degrees laterally and 31 to 40 degrees up and down. This was his main concern. His diplopia was not correctable with standard spectacle correction or with special prismatic correction. An external exam found bilateral laser peripheral iridotomy had been performed secondary to narrow angles and he had bilateral posterior chamber intraocular lenses. Internal eye exams were normal bilaterally. The Veteran did not have a visual field defect. The Veteran had left angle-closure glaucoma that was treated with laser peripheral iridotomy. He had discontinued his medication. His glaucoma did not result in visual impairment. He also had bilateral post-operative cataracts with replacement intraocular lenses (pseudophakia), but not aphakia or dislocation of either crystalline lens. His cataracts did not result in visual impairment. Finally, he had diplopia due to inferior rectus muscle left eye damage, which caused his visual impairment. The Veteran did not have any scarring or disfigurement attributable to an eye condition. He had had two incapacitating episodes (falls) attributable to an eye condition in the prior twelve months. His eye conditions impacted his ability to work in that he could not drive safely due to doubled vision when looking left. He had trouble walking over uneven surfaces, causing frequent falls. Reading and looking from side to side was difficult. His vision was only stable when looking straight ahead. He would have difficulty working on two computer monitors. A March 2020 VA treatment record notes an increase in doubled vision. The Veteran stated that this caused him to fall. This physician recommended that the Veteran wear an eye patch on his left eye. In a July 2020 statement, his spouse stated that the Veteran's left eye disability had gotten progressively worse. They had seen multiple ophthalmologists to try to correct his left eye disability, but had been told that surgery was not recommended. A February 2021 eye conditions DBQ shows diagnoses of bilateral binocular movement, esotropia, and left hypertropia; pseudophakia (posterior chamber intraocular lenses); and vitreous floaters. The Veteran reported double vision ar certain direction of gaze. His glaucoma was treated was treated with laser iridotomy of the irises of the bilateral eyes in 2016. He has no required drops or other treatment since. His uncorrected distance visual acuity was 20/40 bilaterally, corrected to 20/20 or better bilaterally. His uncorrected near visual acuity was 20/40 on the right and 20/70 on the left, corrected to 20/20 or better bilaterally. His pupils were round and reactive to light. No afferent pupillary defect was present. He did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. He did not have a corneal irregularity that resulted in severe astigmatism. He had occasional diplopia from 21 to 30 degrees laterally. His diplopia manifests on right and lateral gaze. His diplopia was not correctable with standard spectacle correction or with special prismatic correction. An external exam found iridotomy and superior peripheral irises and bilateral pseudophakia and posterior chamber intraocular lenses. Internally, he had .55 cup-to-disc ratio in the bilateral optic disc and vitreous floaters. He did not have a documented visual field defect. Nevertheless, the accompanying visual field perimeter chart showed visual field impairment as described below: Meridian Normal Right Eye Left Eye Up 45 35 42 Up temporally 55 55 50 Temporally 85 75 75 Down temporally 85 70 67 Down 65 55 49 Down nasally 50 45 50 Nasally 60 55 51 Up nasally 55 47 45 Total: 500 437 429 Average Concentric Contraction 62.5 54.625 53.625 The Veteran had bilateral post-operative cataracts with replacement intraocular lenses (pseudophakia), but not aphakia or dislocation of either crystalline lens. His cataracts did not result in visual impairment. He also had a binocular vision disorder which resulted in visual impairment. The longstanding intermittent diplopia that presents on certain gaze is stable and does not require treatment. The Veteran did not have any scarring or disfigurement attributable to an eye condition. He had not had any incapacitating episodes attributable to an eye condition in the prior twelve months. His eye conditions did not impact his ability to work. This examiner noted that the Veteran's left eye traumatic glaucoma had been successfully treated and did not require intraocular pressure lowering eye drops. There was no current retinal nerve fiber layer defect. It was as likely as not, that the narrow angle glaucoma spiked indicating the need for the laser peripheral iridotomy, visual field testing during the spike showed a scotoma, and a permanent visual field defect would show on optical coherence tomography testing. His apparently resolved glaucoma did not present any current disability. Based on the above, as of March 30, 2015, the Veteran's left eye disability manifested as average concentric contraction of the left eye visual field to 53.625 degrees, diplopia at 21 to 30 degrees laterally and 31 to 40 degrees up and down, and corrected visual acuity of no less than 20/40. He discontinued his glaucoma medication in approximately 2017. A unilateral visual field defect with remaining visual field of 46 to 60 degrees warrants a 10 percent rating or is treated as 20/50 in visual acuity. Diplopia at 21 to 30 degrees laterally is the equivalent of 20/100 in visual acuity. 38 C.F.R. § 4.79, DC 6090. Diplopia at 31 to 40 degrees up is the equivalent of 20/40 in visual acuity. Id. Diplopia at 31 to 40 degrees down is the equivalent of 20/200 in visual acuity. Id. Thus, the 20/100 visual acuity equivalent for laterally diplopia is the highest. See 38 C.F.R. § 4.78(b)(2). As the Veteran has diplopia in multiple areas, this is increased to 20/200. See 38 C.F.R. § 4.78(b)(3). As both a visual field defect and diplopia are show, this 20/200 that would otherwise be assigned for diplopia alone instead converts to a three-step poorer evaluation for the Veteran's service-connected left eye. See 38 C.F.R. § 4.78(b). Adding three steps to 20/50 results in visual acuity equivalent of 20/200. A 20/200 visual acuity for the left eye combined with 20/40 for the nonservice-connected right eye warrants a 20 percent rating. See 38 C.F.R. § 4.79, DC 6066. This exceeds the 10 percent minimum for glaucoma for the period when the Veteran was taking continuous medication, so staging based on that change is not necessary. The November 2019 examiner reports two incapacitating episodes within a one-year period, which were described as falls. The definition of incapacitating episodes is "an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes." See 38 C.F.R. § 4.79. This does not encompass falls. Regardless, even if the Veteran's falls are treated as incapacitating episodes, two incapacitating episodes within a one-year period would only warrant a 10 percent rating. See id. As such, the rating assigned based on visual impairment is more favorable for the Veteran. Thus, as of March 30, 2015, a 20 percent rating is warranted for left eye disability. This is less than the current combined rating of 20 percent for diplopia and 10 percent for glaucoma. As such, the Board will not disturb those ratings and instead will find that as of March 30, 2015, ratings higher than 20 percent for diplopia and/or higher than 10 percent for glaucoma are not warranted. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Houbeck 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.