Citation Nr: 21030297 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-52 340 DATE: May 18, 2021 ORDER Entitlement to an initial compensable disability rating for diabetic retinopathy is denied. FINDING OF FACT The Veteran's diabetic retinopathy has not been shown to cause visual impairment and has not resulted in any incapacitating episodes. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for diabetic retinopathy have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6006. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Navy from January 1960 to December 1979. He received the Vietnam Service Medal, among other decorations and awards. This matter was most recently before the Board in October 2020, at which time it was remanded for additional development. The case has since returned to the Board for appellate consideration. Entitlement to an initial compensable disability rating for diabetic retinopathy Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran's service-connected diabetic retinopathy has been assigned a noncompensable (0 percent) rating under Diagnostic Code 6006, which provides the criteria for rating retinopathy or maculopathy. 38 C.F.R. § 4.79. During the pendency of the appeal, the Department of Veterans Affairs (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. Under the former criteria, Diagnostic Code 6006 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. 38 C.F.R. § 4.79 (2018). The General Rating Formula for Diagnostic Codes 6000 through 6009 instructed to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79 (2020). Under the revised criteria, Diagnostic Code 6006 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79 (2020). 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. 38 C.F.R. § 4.79 (2020). In this case, the Board has carefully reviewed the evidence of record, including VA treatment records, examination reports, and lay statements, but finds no evidence that the Veteran has been prescribed at least one week of bed rest due to his diabetic retinopathy, or that he has required at least one treatment visit for his disability during a 12-month period as of May 13, 2018. Therefore, the Board finds that a compensable rating based on incapacitating episodes is not warranted under either the former or revised criteria. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. under both the former and revised criteria. 38 C.F.R. § 4.75 (a). The amendments made no substantive changes to how visual acuity is rated. Regarding visual field and muscle function examinations, the Board notes that use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Evaluation 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. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. 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). Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.77. The table of Ratings for Impairment of Visual Fields provides ratings for visual field loss. The first half of the table provides ratings based on loss of an entire half of field of vision in an eye. The second half of the table provides ratings based on the average concentric contraction of the visual field of each eye. Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.79. To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity) and combine them under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.77(c). Evaluations of visual impairment of muscle function is based on the degree of diplopia. 38 C.F.R. § 4.78. Turning to the evidence in this case, the Board acknowledges that the record reflects the Veteran has documented visual impairment. VA treatment records and a VA eye examination report show impairment of visual acuity and visual field defects. The Veteran was afforded a VA eye examination in March 2019, during which the examiner noted diagnoses of mild nonproliferative diabetic retinopathy in both eyes (for which the Veteran is service-connected), branch retinal vein occlusion of the left eye, maculopathy with subretinal fluid of the right eye, combined cataracts bilaterally, amblyopia of the right eye, corneal scars of the right eye, and macular degeneration of the left eye. Uncorrected distance visual acuity was 10/200 in the right eye and 20/50 in the left eye; uncorrected near visual acuity was 10/200 in the right eye and 20/200 in the left eye; corrected distance visual acuity was 10/200 in the right eye and 20/40 in the left eye; and corrected near visual acuity was 20/200 in the right eye and 20/40 in the left eye. There was no diplopia. Visual field testing was performed and showed contraction of a visual field. The examiner also noted that the Veteran's visual field was restricted in all quadrants in the right eye. The examiner described the Veteran's retinopathy as "background retinopathy without macular edema with visual axis remaining unaffected" and specifically found that the Veteran's decrease in visual acuity or other visual impairment was not attributable to a retina, macula, or vitreous condition. The examiner noted that the Veteran's right eye corneal scars status post forceps injury resulted in amblyopia caused the Veteran's visual impairment. The examiner also attributed visual impairment to his preoperative cataracts. In the remarks section of the examination report, the examiner wrote that the Veteran's diabetic retinopathy "currently has no visual impact." The examiner noted that the Veteran had a history of forceps injury resulting in corneal scarring and amblyopia in the right eye. The examiner also noted that the Veteran had a history of maculopathy with subretinal fluid in the right eye which likely had visual impact; a history of branch retinal vein occlusion in the left eye without ocular sequelae or treatment; a mild nonexudative macular degeneration in the left eye which was mildly visually significant; and bilateral combined cataracts which were also mildly visually significant in the left eye. Overall, after careful review of the evidence of record, the Board finds that the evidence does not warrant assigning an increased rating for diabetic retinopathy at any point during the period on appeal. While the medical evidence of record shows the Veteran has documented impairment of visual acuity and visual field defects, the competent and credible medical evidence shows that his visual impairment is not attributable to his service-connected diabetic retinopathy. Instead, the Veteran's visual impairment can be attributed to his other diagnosed eye conditions, for which service connection is not in effect. The Board finds the March 2019 VA examination report to be particularly probative in this regard. The findings and opinions of the March 2019 VA examiner is highly probative, as she had access to and reviewed the Veteran's pertinent records and conducted an in-person examination. As an expert in her field, she was best suited to determine the cause of the Veteran's visual impairment. Based on the forgoing, the Board finds that while the evidence shows that the Veteran has visual impairment, a preponderance of the evidence is against finding that it is causally related to his service-connected diabetic retinopathy. Therefore, the Board finds that a compensable rating is not warranted for his service-connected diabetic retinopathy based on impairment of visual acuity. To the extent that the Veteran himself has suggested a causal relationship, the Board finds that as a lay person he does not have the education, training, or experience to competently opine as to the cause of his visual impairment. See 38 C.F.R. § 3.159 (a)(1); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For these reasons, the Veteran's claim must be denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.