Citation Nr: A25035762
Decision Date: 04/17/25	Archive Date: 04/17/25

DOCKET NO. 210810-184211
DATE: April 17, 2025

ORDER

Entitlement to an initial compensable disability rating for photophobia associated with traumatic brain injury (TBI) is denied.

FINDING OF FACT

The Veteran's photophobia associated with TBI has not manifested in visual impairment or incapacitating episodes.

CONCLUSION OF LAW

The criteria for an initial compensable disability rating for photophobia associated with TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.79, 4.124a, Diagnostic Code 6046

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from March 2010 to April 2011. 

The rating decision on appeal was issued in September 2021. Since this constitutes an initial decision by the agency of original jurisdiction (AOJ), issued after the effective date of the Appeals Modernization Act (AMA), the modernized review system applies. See 38 C.F.R. § 3.2400(a)(1).

The Veteran appealed this decision by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) in September 2021. In doing so, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the issuance of the June 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303

If evidence was submitted during the period after the RO issued the February 2024 rating decision, the Board did not consider it in its decision. 38 C.F.R. §§20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

INCREASED RATINGS

The Veteran seeks an increased disability rating for photophobia associated with TBI, for which he is in receipt of a noncompensable disability rating under Diagnostic Code 6046.

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. Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Photophobia disorders rated under Diagnostic Code 6046 are to be evaluated pursuant to the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79. The General Rating Formula instructs to evaluate based on either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79.

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 § 4.25.

Ratings for impairment of central visual acuity range from noncompensable to 100 percent. 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).

With respect to field of vision impairment, 38 C.F.R. § 4.76a, Table III, reflects that the normal visual field extent at the 8 principal meridians totals 500 degrees. Normal visual field extent for each of the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field in each of the eight 45-degree principal meridians. To calculate average concentric contraction, the rater should add the remaining visual field (in degrees) at each of eight principal meridians 45 degrees apart and divide the sum by eight. 38 C.F.R. § 4.77(b).

Ratings for impairment of visual fields range from 10 percent to 100 percent. 38 C.F.R. § 4.79, Diagnostic Codes 6080 to 6081. 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 § 4.25. 38 C.F.R. § 4.77 (c).

Evaluation of impairment of muscle function is based on the degree of diplopia. The examiner must record test results for the four major quadrants (upward, downward, and right and left lateral) and the central field (20 degrees or less). 38 C.F.R. § 4.78(a).

Regarding incapacitating episodes, the Board notes that 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.

Turning to the evidence, the Board observes that the Veteran underwent a VA eye conditions examination in connection with his claim in June 2021. Regarding the photophobia condition, the Veteran reported difficulty driving at night and dept perception. Physical examination revealed uncorrected distances at 20/40, and corrected distance vision of 20/20 bilaterally. There was no difference in corrected visual acuity for distance and near vision. There was no anatomical loss of either eye. There was no visual field defect. The examiner indicated that the Veteran had not had any incapacitating episodes attributable to an eye condition during the past 12 months. Regarding functional impact, the examiner noted that the Veteran's condition did not impact his ability to work.

After careful review of the evidence, the Board finds that a compensable disability rating is not warranted for the Veteran's photophobia associated with TBI. In his appeal, the Veteran did not offer reasoning for the assignment of a higher evaluation. The physical examination of the Veteran did not show loss of visual acuity or visual fields sufficient to warrant a compensable rating based on visual impairment. The Veteran had not had any incapacitating episodes attributed to any eye condition during the past 12 months. 

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for an initial compensable disability rating for photophobia with associated TBI. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 

 

M. MILLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. D. Brown

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.