Citation Nr: 21030833 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 11-28 861A DATE: May 19, 2021 ORDER A compensable rating for diabetic retinopathy prior to July 16, 2019, is denied. A rating higher than 30 percent for diabetic retinopathy as of July 16, 2019, is denied. FINDINGS OF FACT 1. Prior to July 16, 2019, the Veteran's diabetic retinopathy manifested as corrected distance visual acuity of 20/40 or better. He did not have visual field impairment or impaired muscle function. He did not have incapacitating episodes due to his bilateral eye disability. 2. As of July 16, 2019, the Veteran's diabetic retinopathy manifests as visual field loss with average concentric contraction of no less than 42 degrees in either eye, but no other visual impairment as his corrected visual acuity was consistently 20/40 or better and he had no impairment of muscle function or associated incapacitating episodes. CONCLUSIONS OF LAW 1. Prior to July 16, 2019, the criteria for a compensable rating for diabetic retinopathy were not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Code (DC) 6006. 2. As of July 16, 2019, the criteria for a rating for diabetic retinopathy in excess of 30 percent have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Code (DC) 6006. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims for increased ratings for diabetes mellitus, diabetic retinopathy, and erectile dysfunction; granted service connection for coronary artery disease (CAD) and peripheral neuropathy of all four extremities; and continued the existing rate of special monthly compensation. In his October 2009 notice of disagreement, the Veteran appealed the disability ratings assigned for diabetes mellitus, peripheral neuropathy of all extremities, CAD, and retinopathy. In September 2011, the RO issued a statement of the case. The Veteran perfected his appeal with a November 2011VA Form 9. The Board adjudicated this appeal in a February 2017 decision, which denied the Veteran's increased ratings claims for diabetes mellitus, diabetic retinopathy, and peripheral neuropathy of the bilateral upper extremities prior to January 23, 2015; and granted 20 percent ratings for peripheral neuropathy of the bilateral upper extremities after January 23, 2015, granted 30 percent rating for coronary artery disease, and granted 20 percent ratings for peripheral neuropathy of the bilateral lower extremities. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In November 2017, the Court granted a joint motion for remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the portion of the February 2017 Board decision that denied a rating higher than 20 percent for diabetes mellitus, a rating higher than 30 percent for CAD, ratings higher than 10 percent prior to January 23, 2015, and higher than 20 percent as of that date for peripheral neuropathy of the bilateral lower extremities (sciatic nerve involvement), and a compensable rating for diabetic retinopathy; and remanded the claim to the Board for action consistent with the terms of the JMR. The other findings of the February 2017 Board decision remained intact. In July 2018, the Board remanded these issues for further development. In August 2020, the Board granted an increased rating for diabetes mellitus, denied increased ratings for CAD and peripheral neuropathy of all extremities, and remanded the issue of a compensable rating for diabetic retinopathy for further development. In a March 2021 rating decision, during the pendency of this appeal the RO granted a 30 percent rating for diabetic retinopathy effective July 16, 2019. Insofar as higher ratings are available for this disability and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. An increased rating for diabetic retinopathy The Veteran was originally granted service connection for diabetic retinopathy in an August 2008 rating decision. At that time, a noncompensable rating was assigned effective March 22, 2006. As noted in the introduction, the March 2021 rating decision granted a 30 percent rating for diabetic retinopathy effective July 16, 2019; thereby creating a staged disability rating. Below, the Board will address whether these stages are appropriate. 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, retinopathy (DC 6006) is rated under the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula instructs 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. Under the revised criteria, retinopathy (DC 6006) is rated under the General Rating Formula for Diseases of the Eye. The General Rating Formula 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 DC 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 DC 6090-6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.78, 4.79. Prior to July 16, 2019 The May 2008 VA eye examination notes mild bilateral background diabetic retinopathy without clinically significant macular edema. His corrected visual acuity was 25/20 bilaterally. He had full range of motion of intraocular muscles and full confrontation fields to finger counting bilaterally. The March 2009 VA eye examination notes worsening vision since the prior exam and difficulty focusing. His best corrected visual acuity remained 20/25 bilaterally and he still had full range of motion of intraocular muscles and full confrontation fields to finger counting bilaterally. This examiner diagnosed bilateral cataracts the were not related to his diabetes, but were the cause of his decreased visual acuity. An April 2009 eye examination shows complaints of occasional floaters and fluctuating visual acuity. His corrected visual acuity was 20/25 bilaterally. He had full visual fields and full motility. A March 2010 VA treatment record noted mild bilateral background diabetic retinopathy (nonproliferative), cataracts, and refractive error. His uncorrected distance visual acuity was 20/70 in the right eye and 20/40 in the left eye, correctable to 20/20 bilaterally. His uncorrected near vision was 20/40 bilaterally, correctable to 20/25. This optometrist found that the Veteran's conditions are of little visual consequence. His retinopathy required follow-up and monitoring, but was not affecting his vision. June 2011 and January 2012 eye examinations show corrected visual acuity was 20/25 in the right eye and 20/20 in the left eye. The March 2015 VA eye examination notes diagnoses of cataracts and mild nonproliferative diabetic retinopathy. His uncorrected distance visual acuity was 20/70 in the right eye and 20/50 in the left eye, correctable to 20/40 or better bilaterally. His uncorrected near vision was 20/50 bilaterally, correctable to 20/40 or better bilaterally. His pupils were round and reactive to light. No afferent pupillary defect was present. The Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. He did not have a corneal irregularity that results in severe irregular astigmatism or diplopia. An external eye exam found bilateral cataracts. An internal eye exam found bilateral isolated dot and blot hemorrhages and posterior vitreous detachment. He did not have a visual field defect. The Veteran's decreased visual acuity was attributed to his bilateral preoperative cataracts. He did not have aphakia or dislocation of the crystalline lens. His bilateral retinopathy did not impact his vision. He did not have any associated scarring; disfigurement; or any other eye conditions, pertinent physical findings, complications, conditions, signs and/or symptoms related to eye conditions. In the prior twelve months, the Veteran had not had any incapacitating episodes attributable to any eye condition. His eye conditions did not impact his ability to work. VA treatment records from this period consistently show visual acuity correctable to 20/40 or better and no other visual impairment. Based on the above, prior to July 16, 2019, the Veteran's bilateral diabetic retinopathy did not cause visual impairment. He had a noncompensable level of decreased visual acuity (consistently 20/40 or better), which was attributed to a nonservice-connected eye condition. He did not have a visual field defect or an impairment of muscle function. Similarly, he has had no incapacitating episodes due to his eye disability. Thus, prior to July 16, 2019, the Veteran's diabetic retinopathy did not warrant a compensable disability rating and, therefore, his appeal is denied. As of July 16, 2019 The July 16, 2019 VA eye examination notes diagnoses of moderate nonproliferative diabetic retinopathy with bilateral diabetic macular edema, pseudophakia, and pre-glaucoma. His uncorrected distance visual acuity was 20/40 bilaterally, correctable to 20/20 or better in the right and 20/40 in the left. His uncorrected near vision was 20/100 bilaterally, correctable to 20/40 bilaterally. His pupils were round and reactive to light. No afferent pupillary defect was present. The Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. He did not have a corneal irregularity that results in severe irregular astigmatism or diplopia. An external eye exam found bilateral cataracts. An external eye exam found bilaterally pseudophakia. An internal exam found bilateral diabetic macular edema, vitreous degeneration, and scattered dot and blot hemorrhages. He had a visual field defect, including a scotoma. He did not have legal (statutory) blindness based upon visual field loss. The Veteran had open-angle glaucoma in the left eye that required continuous medication. He had post-operative bilateral cataracts with replacement intraocular lenses, but not aphakia or dislocation of the crystalline lens. His decrease in vision was attributable to diabetic macular edema. He did not have any associated scarring; disfigurement; or any other eye conditions, pertinent physical findings, complications, conditions, signs and/or symptoms related to eye conditions. In the prior twelve months, the Veteran had not had any incapacitating episodes attributable to any eye condition. His eye conditions did not impact his ability to work. The February 2021 VA eye conditions disability benefits questionnaire (DBQ) noted diagnoses of bilateral diabetic retinopathy with cataracts, posterior intraocular lens implants, and glaucoma. He reported worsening vision and feeling like there was a film over his eyes. His distance visual acuity was 20/40 bilaterally with or without correction. His near visual acuity was 20/100 bilaterally, correctable to 20/40 bilaterally. His pupils were round and reactive to light. No afferent pupillary defect was present. The Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. He did not have a corneal irregularity that results in severe irregular astigmatism or diplopia. An external eye exam ptosis of the bilateral upper lids and bilateral posterior chamber intraocular implants. An internal eye exam found large cupping of the bilateral optic discs, bilateral posterior vitreous detachment, excessive exudated inferior to fovea with scattered micro aneurysms in the right macula, and exudates within left macula with scattered micro aneurysms. He had a documented visual field defect. He had some loss of visual field as described below: Meridian Normal Right Eye Left Eye Up 45 9 20 Up temporally 55 32 26 Temporally 85 51 70 Down temporally 85 75 68 Down 65 60 56 Down nasally 50 43 48 Nasally 60 44 49 Up nasally 55 24 22 Total: 500 338 359 Average Concentric Contraction 62.5 42.25 44.875 He did not have loss of a visual field or a scotoma. He did not have legal (statutory) blindness based upon visual field loss. His bilateral open-angle glaucoma required continuous medication. He had post-operative bilateral cataracts with replacement intraocular lenses, but not aphakia or dislocation of the crystalline lens. His reduced visual field was most likely due to age-related ptosis in both eyes. The decreased in visual acuity was due to the bilateral diabetic retinopathy with macular edema. He did not have any associated scarring or disfigurement. In the prior twelve months, the Veteran had not had any incapacitating episodes attributable to any eye condition. His eye conditions did not impact his ability to work. VA treatment records from this period consistently show visual acuity correctable to 20/40 or better. (continued to next page) Based on the above, as of July 16, 2019, the Veteran had visual field loss with average concentric contraction of 42 degrees in the right eye and 45 degrees in the left eye. This bilateral visual field loss warrants a 30 percent rating under DC 6080. The Veteran has no other visual impairment as his corrected visual acuity was consistently 20/40 or better, and he had no impairment of muscle function. Similarly, he has had no incapacitating episodes due to his eye disability. Thus, as of July 16, 2019, the Veteran's diabetic retinopathy does not warrant a disability rating higher than the current 30 percent, and, therefore, his appeal is denied. Joshua Castillo 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.