Citation Nr: 22017288 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 09-09 944 DATE: March 24, 2022 ORDER Entitlement to an initial 30 percent disability rating, but no higher, for glaucoma is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's glaucoma has been productive of both active pathology and loss of visual field. CONCLUSION OF LAW The criteria for a 30 percent disability rating, but no higher, for glaucoma have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.25, 4.83-4.84a, Diagnostic Code 6080 (2008); 38 C.F.R. §§ 3.321, 4.1, 4.25, 4.75-4.79, Diagnostic Code 6080 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Navy from November 2000 to November 2005, and from June 2006 to July 2007. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held in August 2018. A transcript of the hearing is associated with the claims file. This case was most recently before the Board in May 2021, at which time it was remanded for additional development. The case has since returned to the Board for appellate consideration. Entitlement to an initial disability rating in excess of 10 percent prior to January 13, 2022, and in excess of 20 percent thereafter for glaucoma Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. As an initial matter, the Board notes that the criteria for the evaluation of disabilities of the eyes were amended twice during the period on appeal: effective December 10, 2008, and effective May 13, 2018. The December 2008 amendments govern cases only when the claim is filed on or after that date. See 73 Fed. Reg. 66543 (November 10, 2008). As the instant claim was filed prior to December 10, 2008, the rating criteria revised effective December 10, 2008 are not applicable. By contrast, the May 2018 amendments were not likewise limited. See 83 Fed. Reg. 15316 (Apr. 10, 2018). Therefore, the Board will consider the claim in light of both the former (pre-December 10, 2008) and revised (May 13, 2018) schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. In this case, the Veteran is in receipt of a 10 percent disability rating prior to January 13, 2022 and a 20 percent rating thereafter under Diagnostic Code (DC) 6012-6066, for glaucoma causing impairment of visual acuity. Under the criteria in effect prior to December 2008, DC 6012 pertained to glaucoma, congestive or inflammatory, and instructed that a 100 percent rating was warranted for frequent attacks of considerable duration; during continuance of actual total disability. Otherwise, the DC instructed that the disability be rated as iritis under DC 6003. Under the old criteria for evaluating diseases of the eye, DCs 6000 through 6009 were to be rated from 10 percent to 100 percent disabling for impairment of visual acuity or loss of field of vision, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. A minimum rating of 10 percent is to be assigned during active pathology. Neither the code itself nor any other portion of the rating schedule provides a definition of "rest-requirements" or "episodic incapacity" as used in these diagnostic codes. 38 C.F.R. § 4.84, DCs 6000-6009. Following amendment of the regulations concerning diseases of the eye, DC 6003 was removed and ratings under DCs 6000 to 6009 no longer involve evaluations for periods of active pathology and pain, but instead are to be evaluated based on either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Both the former and revised criteria provide for consideration of visual impairment. The evaluation 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 evaluation 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 amendments made no substantive changes to how visual acuity is 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). DC 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. Where the visual acuity in one the poorer eye is 20/70, the following ratings apply. A 30 percent rating is warranted where vision in the other eye is also 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40. The extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. 38 C.F.R. § 4.77 (a). The degrees lost are then added together to determine total degrees lost. The sum is divided by eight and represents the average contraction of the visual field. Normal visual field extant at eight principal meridians is as follows: temporally is 85 degrees, down temporally is 85 degrees, down is 65 degrees, down nasally is 50 degrees, up nasally is 55 degrees, up is 45 degrees, and up temporally is 55 degrees. 38 C.F.R. § 4.76a, Table III. Evaluation of visual field is based on the remaining field of vision in each eye. Notably, prior to December 10, 2008, bilateral contraction of the visual field with remaining field of between 46 and 60 degrees warranted a 20 percent rating. Under the new criteria, a 10 percent rating is warranted for bilateral contraction of the visual field with remaining field of between 46 and 60 degrees. Otherwise, the evaluation of impairment based on visual field has not substantively changed. Concentric contraction of visual field to 5 degrees warrants a 100 percent disability rating for bilateral loss, a 30 percent disability rating for unilateral loss, or is rated as 5/200 (1.5/60). Concentric contraction of visual field to 15 degrees, but not to 5 degrees, warrants a 70 percent disability rating for bilateral loss, a 20 percent disability rating for unilateral loss, or is rated as 20 /200 (6/60). Concentric contraction of visual field to 30 degrees, but not to 15 degrees, warrants a 50 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20 /100 (6/30). Concentric contraction of visual field to 45 degrees, but not to 30 degrees, warrants a 30 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/70 (6/21). Concentric contraction of visual field to 60 degrees, but not to 45 degrees, warrants a 20 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/50 (6/15). Bilateral loss of the temporal half of the visual field warrants a 30 percent disability rating, unilateral loss warrants a 10 percent disability rating, or is rated as 20/70 (6/21). Bilateral loss of the nasal half of the visual field warrants a 20 percent disability rating, unilateral warrants a 10 percent disability rating, or is rated as 20/50 (6/15). 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2008). The revised criteria provide an additional avenue for an increased rating based on incapacitating episodes. Under the revised criteria, the General Rating Formula for Diseases of the Eye instructs to evaluate based on either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Under the current criteria, 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, Diagnostic Codes 6061-6091. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Turning to the evidence, during her August 2018 Board hearing, the Veteran testified that she could not see peripherally and had been involved in multiple car accidents because of her vision impairment. She also reported that she could not see her feet and that her eyes were painful most days. In an August 2018 letter, the Veteran's former supervisor wrote that she observed the Veteran trip and fall and run into chairs and people she could not see. She also wrote that the Veteran was transferred to her department because she was unable to see well enough to drive to her clients' houses, and that she observed the Veteran have pain in the back of her eyes "so bad she would not be able to sit up." In an April 2019 letter, the Veteran's husband further described the difficulties she had due to the fact that she was unable to see below her waist. He also wrote that the Veteran experienced severe pain in the back of her eyes and near weekly migraines lasting two to three days at a time. In a March 2021 letter, the Veteran wrote that she could not see anything below her waist; that she crashed her car four times in the past 18 months, that she experienced daily pain in the back of her eyeballs; and that she suffered frequent falls. She wrote that daily use of eye drops kept her pressures stable, but it was not preventing her from losing her peripheral vision. The Veteran was first afforded a VA eye examination in October 2007. The examiner noted that the Veteran had a history of pre-glaucoma but was not placed on medication. Best corrected distance visual acuity was 20/20 bilaterally. Goldmann visual field testing was performed and yielded the following results: Meridian Normal degrees Right Eye Left Eye Temporally 85 42 57 Down temporally 85 48 72 Down 65 35 62 Down nasally 50 35 35 Nasally 60 32 30 Up nasally 55 32 38 Up 45 30 37 Up temporally 55 42 42 Total 500 296 373 To obtain remaining visual field (average concentric contraction) for an eye, add up the remaining visual field at each of the eight principal meridians for that eye and divide the sum by eight. 38 C.F.R. § 4.77 (b). In this case, adding the remaining visual field at each of the eight principal meridians for the left eye (373) and dividing the sum by eight yields an average concentric contraction of 46.625 degrees. Adding the remaining visual field at each of the eight principal meridians for the right eye (296) and dividing the sum by eight yields an average concentric contraction of 37 degrees. In this analysis, the Board has interpreted the results of visual field testing expressed on the appropriate charts. The Board finds that, as the finder of fact, it can interpret the graphical representations on the charts, which are apparent to lay observation, to determine the numeric values of the visual field measurements for adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). The examiner noted that the visual field was not typical of glaucoma but did show some generalized constriction in the right eye. The examiner further noted that the Veteran's visual condition had not adversely affected employment in the past 12 months. The Veteran underwent another VA eye examination in March 2010. She reported that she sometimes had pain behind her eyes, and that she had difficulty with night vision. It was noted that she had a laser peripheral iridotomy on both eyes in February 2009 by a civilian ophthalmologist. Best corrected distance vision was 20/20 bilaterally. Goldmann visual field testing was performed and yielded the following results : Meridian Normal degrees Right Eye Left Eye Temporally 85 75 75 Down temporally 85 70 70 Down 65 60 59 Down nasally 50 48 40 Nasally 60 55 52 Up nasally 55 55 50 Up 45 40 38 Up temporally 55 60 55 Total 500 463 439 Adding the remaining visual field at each of the eight principal meridians for the left eye (439) and dividing the sum by eight yields an average concentric contraction of 54.875 degrees. Adding the remaining visual field at each of the eight principal meridians for the right eye (463) and dividing the sum by eight yields an average concentric contraction of 57.875 degrees. The examiner wrote that the Veteran had glaucoma, probably of the combined mechanism type. The examiner further wrote that she had peripheral iridotomies in each eye and a visual field in the left eye that had a slight abnormality. However, the examiner found no adverse effects on employment. In a December 2011 addendum to his March 2010 VA examination report, the examiner wrote that the Veteran was diagnosed with pre-glaucoma in June 2007 but was not placed on medication at that time. Over time, her glaucoma gradually developed into combined mechanism glaucoma, and she was then examined and treated by a civilian ophthalmologist. The examiner noted that this was a normal course of events in the development of glaucoma, and that the Veteran was now well cared for and her glaucoma under control. The Veteran underwent another VA examination in September 2015. The examiner diagnosed glaucoma with peripheral iridotomy surgery. The Veteran reported that the condition had progressed since initial diagnosis; following surgery to relieve intraocular pressure, pressure went up, and she was then prescribed eye drops to help control the pressure. The Veteran was found to have diminished vision in the left eye, including peripheral vision; she was also found to have occasional pain and headaches related to glaucoma. The examiner noted that the Veteran had had peripheral iridotomy surgery in approximately 2009, that she had also been using eye drops to control pressure, and that she recently had her medication changed to dorzolamide in both eyes twice daily. Physical evaluation showed best corrected distance visual acuity to be 20/40 or better in both eyes. Goldmann visual field testing was performed and yielded the following results: Meridian Normal degrees Right Eye Left Eye Temporally 85 70 68 Down temporally 85 68 63 Down 65 58 55 Down nasally 50 40 32 Nasally 60 55 42 Up nasally 55 52 37 Up 45 35 35 Up temporally 55 50 50 Total 500 428 382 Adding the remaining visual field at each of the eight principal meridians for the left eye (382) and dividing the sum by eight yields an average concentric contraction of 47.75 degrees. Adding the remaining visual field at each of the eight principal meridians for the right eye (428) and dividing the sum by eight yields an average concentric contraction of 53.5 degrees. The examiner indicated that there were no incapacitating episodes. The examiner determined that the Veteran's eye condition impacted her ability to work in that her diminished vision rendered her unable to drive at night or in unfamiliar areas. The examiner noted that the Veteran stated that at a previous eye doctor visit, she was shown a test printout from her eyes and had been told that her left eye had sustained "75% damage." She stated further that she felt that the vision in her left eye was significantly limited relative to the right eye, but the examiner noted that clinical findings at the examination were not consistent with significantly impaired functioning in the left eye. The examiner further noted that the diagnosis of glaucoma during the examination was largely due to previous history of glaucoma diagnosis and treatment. The Veteran's intraocular pressure, optic nerve appearance, retinal nerve fiber layer thickness, and peripheral vision were all "grossly normal" on examination; however, the Veteran had previously been treated with peripheral iridotomies and was currently under medical therapy to control intraocular pressure. The Veteran underwent another VA eye examination in July 2019. The examiner wrote that the Veteran's glaucoma was of mild severity in both eyes. Corrected distance vision was 20/20 or better in both eyes. Goldmann visual field testing was performed and yielded the following results: Meridian Normal degrees Right Eye Left Eye Temporally 85 70 70 Down temporally 85 65 65 Down 65 40 50 Down nasally 50 40 30 Nasally 60 50 70 Up nasally 55 45 40 Up 45 35 30 Up temporally 55 45 35 Total 500 390 390 Adding the remaining visual field at each of the eight principal meridians for the left eye (390) and dividing the sum by eight yields an average concentric contraction of 48.75 degrees. Adding the remaining visual field at each of the eight principal meridians for the right eye (390) and dividing the sum by eight yields an average concentric contraction of 48.75 degrees. The examiner indicated that the Veteran's glaucoma required continuous medication for treatment, and that her visual impairment was attributable to glaucoma. There were no incapacitating episodes. The examiner found that glaucoma did not impact the Veteran's ability to work. In a March 2020 addendum opinion, the examiner noted that visual field testing, both kinetic and 24-2 (Humphrey Visual Field), revealed only minor visual field defects that were inconsistent with complaints of not being able to see below the waist, or causing falls or bumping into things. The examiner also noted that optical coherence tomography also revealed no loss of retinal nerve fiber in the right eye and only borderline thinning in the left eye. In a February 2021 VA medical opinion, an ophthalmologist noted review of the all of the Veteran's visual field results and determined that they were consistent with non-specific visual field defects that are consistent with the diagnosis of mixed mechanism glaucoma of both eyes status-post laser peripheral iridotomy. The Veteran most recently underwent a VA examination in January 2022. The examiner diagnosed glaucoma and mild cataracts affecting both eyes. Corrected distance visual acuity was 20/40 in the right eye and 20/20 or better in the left eye. Goldmann visual field testing was performed and yielded the following results: Meridian Normal degrees Right Eye Left Eye Temporally 85 65 65 Down temporally 85 60 60 Down 65 50 50 Down nasally 50 40 30 Nasally 60 45 45 Up nasally 55 40 40 Up 45 25 30 Up temporally 55 45 40 Total 500 370 360 To obtain remaining visual field (average concentric contraction) for an eye, add up the remaining visual field at each of the eight principal meridians for that eye and divide the sum by eight. 38 C.F.R. § 4.77 (b). In this case, adding the remaining visual field at each of the eight principal meridians for the left eye (360) and dividing the sum by eight yields an average concentric contraction of 45 degrees. Adding the remaining visual field at each of the eight principal meridians for the right eye (370) and dividing the sum by eight yields an average concentric contraction of 46.25 degrees. There were no incapacitating episodes attributable to an eye condition over the past 12 months. The examiner wrote that the Veteran's cataract diagnosis was separate from her glaucoma and that glaucoma restricts the peripheral vision, while the cataract restricts central vision. The examiner indicated that the Veteran's decrease in visual acuity or other visual impairment was attributable to glaucoma. VA treatment records show the Veteran has been treated for glaucoma throughout the period on appeal. Best corrected visual acuity results throughout the period were no worse than 20/40 in both eyes. The Veteran's vision was repeatedly described as "stable," and she remained consistent in use of eye drops to treat glaucoma. The records are silent for reports of incapacitation or rest requirements related to glaucoma, though the records indicate her glaucoma has been active throughout the period. Private treatment records from Fort Worth Eye Associates show the Veteran was evaluated in December 2008 for complaints of headaches in the middle of the night, which were suggestive of possible narrow angle glaucoma attacks; the records show she later underwent laser peripheral iridotomy surgery in both eyes to keep both angles open in February 2009. Overall, after careful review of the evidence of record, the Board finds that an increased 30 percent disability rating is warranted for the entire period on appeal. VA and private treatment records, as well as multiple VA examination reports, show the Veteran's best corrected distance visual acuity was no worse than 20/40 bilaterally during the period. Therefore, a higher rating is not warranted based on visual acuity findings. Further, the evidence does not show that the Veteran experienced incapacitating episodes or periods of episodic incapacity to the extent required for a higher rating under the current or former criteria. Multiple VA examiners found no evidence of incapacitating episodes during the period on appeal, and VA and private treatment records are silent for reports of incapacity or required rest due to glaucoma. However, visual field test results from the period show the Veteran's average concentric contraction was 37 degrees in the right eye and 46.25 degrees in the left eye in October 2007. According to Diagnostic Code 6080 of both the previous and revised regulations, 37 degrees average concentric contraction of the right eye is evaluated as 20/70, and 46.25 degrees average concentric contraction of the left eye is evaluated as 20/50. Evaluating the right eye as 20/70 and the left eye as 20/50 under Diagnostic Code 6066 is commensurate with a 20 percent disability rating under both the current and former criteria. Later, visual field testing in January 2022 showed average concentric contraction of 46.25 degrees in the right eye and 45 degrees in the left eye. According to Diagnostic Code 6080 of both the previous and revised regulations, 45 degrees average concentric contraction of the left eye is evaluated as 20/70, and 46.25 degrees average concentric contraction of the right eye is evaluated as 20/50. Evaluating the left eye as 20/70 and the right eye as 20/50 under Diagnostic Code 6066 is commensurate with a 20 percent disability rating under both the current and former criteria. Therefore, a 20 percent rating is warranted based on visual impairment. However, as previously discussed, under the criteria in effect prior to December 10, 2008, which are applicable in this case, an additional 10 percent rating is to be combined with the rating for visual impairment during active pathology. 38 C.F.R. § 4.84a, DC 6003 (effective prior to December 10, 2008). The Board finds that the evidence reasonably shows that the Veteran's glaucoma has manifested as active pathology during the entire period on appeal. Therefore, the 20 percent rating warranted for visual impairment is to be combined with a 10 percent rating based on active pathology. Combining the 20 percent rating and 10 percent rating under the provisions of 38 C.F.R. § 4.25 yields a 30 percent disability rating. A higher evaluation would require more severe visual impairment or symptoms. Therefore, a 30 percent rating, but no higher, is warranted for the entire period on appeal. In reaching the above conclusion, the Board has considered whether the evidence warrants referral for extraschedular consideration, given that the Veteran's representative raised the issue of an extraschedular rating in an April 2021 brief. Specifically, the Veteran's representative contended that the schedular rating criteria do not contemplate the impact that glaucoma has had on her activities of daily living (ADLs). Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). Extraschedular consideration is not applicable to claims that are evaluated properly but ultimately denied under the schedular ratings; rather, it applies only after conventional rating tools prove inadequate to evaluate a veteran's symptomatology in the first place due to its exceptional nature. Long v. Wilkie, 33 Vet. App. 167 (2020). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. (Continued on the next page) In this case, comparison of the Veteran's visual symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe her disability picture. The Veteran's glaucoma is rated under Diagnostic Code 6012-6066, which contemplates visual impairment by either (or both, if applicable) central visual acuity and impairment of visual fields, active pathology, as well as consideration of continuous medication if visual impairment did not provide a compensable rating. The record shows that her disability is manifest primarily by loss of visual field, which affects her peripheral vision and ability to drive. The Veteran has not contended, and the record does not show, that she has a level of functional impairment or symptoms that are not contemplated by the applicable rating criteria. She has not otherwise explained how the schedular criteria do not adequately contemplate her disability picture, including the impact on her ADLs. As the Veteran's symptoms are reasonably contemplated by the rating criteria, the threshold issue under Thun is not met, and further consideration of an extraschedular rating is not warranted. S. B. MAYS 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.