Citation Nr: 18160503
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 11-19 772
DATE:	December 27, 2018
ORDER
A separate compensable disability rating for bilateral cataracts associated with diabetes mellitus, type II, is denied.
FINDING OF FACT
The Veteran’s diabetes mellitus is not manifested by cataracts that have resulted in compensable visual impairment.
CONCLUSION OF LAW
The criteria for a separate compensable rating for bilateral cataracts associated with diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R §§ 4.1, 4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code, 4.119, Diagnostic Code 7913.

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the U.S. Army from August 1964 to October 1972.  He also had service in the U.S. Coast Guard from September to October 1990.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
This case was previously before the Board in June 2016 and November 2017, when it was remanded for additional development.  The requested development has been substantially completed.
Entitlement to a separate compensable rating for bilateral diabetic cataracts. 
Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.
If there is a question as to which of two evaluations shall be applied, the higher evaluation 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.  If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).
The Veteran's diabetes mellitus has been rated 10 percent disabling under Diagnostic Code 7913.  Under Note (1) of that diagnostic code, compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process under Diagnostic Code 7913. 

The Veteran’s cataracts have been determined to be noncompensable; as such, they have been considered part of the diabetic process contemplated by the current 10 percent rating for diabetes.
During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the criteria for rating disabilities of the eye.  89 Fed. Reg. 15316 (Apr. 10, 2018).  The final rule went into effect on May 13, 2018.
Under the former version of the regulation, cataracts of any type were rated under Diagnostic Codes 6027.  Preoperative cataracts were evaluated based on visual impairment.  For postoperative cataracts, if a replacement lens was present (pseudophakia), the disability was evaluated based on visual impairment.  If there was no replacement lens, the disability was evaluated based on aphakia.
The evidence in this case indicates that throughout the period on appeal the Veteran’s cataracts were either preoperative, or postoperative with a replacement lens.  As such, his disability is to be rated based on visual impairment under the former criteria. Id.
Eye disabilities with visual impairment are rated based on impairment in visual acuity with correction. See 38 C.F.R. §§ 4.75, 4.76. Impairment of central visual acuity warrants a 0 percent, or noncompensable, rating when the vision in both eyes is 20/40 (6/12) or better. 38 C.F.R. § 4.79, Diagnostic Code 6066. A 10 percent rating is provided for vision in one eye of 20/50 (6/15) and vision in the other of 20/40 (6/12) or 20/50 (6/15) or vision in one eye of 20/70 (6/21) or 20/100 (6/30) with vision in the other of 20/40 (6/12). Id.
Under the current version of Diagnostic Code 6027, preoperative cataracts are to be evaluated under the General Rating Formula for Diseases of the Eye, based on either visual impairment or on incapacitating episodes, whichever results in a higher evaluation.  If the cataracts are postoperative and a replacement lens is present, they are likewise to be rated under the General Formula.  If the cataracts are postoperative and there is no replacement lens, they are evaluated based on aphakia.
Thus, the primary difference between the former and revised criteria, as they pertain to this case, is the potential consideration of incapacitating episodes.  With regard to visual impairment, the amendments made no substantive changes as to how visual acuity is rated.  With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required.
Turning to the evidence of record, the Veteran has been diagnosed with post-operative bilateral cataracts, for which he underwent surgery in 2012.
During a VA examination in March 2010, the Veteran reported that he had never had any diagnosed diabetic eye disease and that he worked as a private investigator but never had missed any work related to any visual problem. On examination, his uncorrected distance vision was 20/25 in the right eye and 20/20 in the left eye. His uncorrected near vision was 20/50 in the right eye. His best corrected visual acuity at distance and near in his right and left eye was 20/20.  A slit lamp examination was normal except for 1+ cortical spoking cataracts in both eyes.  He had a cup to disk ratio of 0.5 in both eyes with no evidence of diabetic retinopathy.  The examiner noted that the Veteran had mild diabetic-induced cataracts, but no evidence of diabetic retinopathy.
An August 2013 VA treatment record shows that the Veteran had 20/25 vision in his right eye and 20/20 in his left eye. It was noted that he had no afferent defect in the pupils; full motility in all fields of gaze; and full confrontation fields in both eyes. The clinical impression was glaucoma suspect and pseudophakia.
In September 2014, the Veteran was noted to have 20/20 vision in both eyes.  The clinical assessment was asymmetric cupping with normal pressures; stable.
On VA examination in January 2017, it was noted that the Veteran’s cataracts had been removed.  On clinical evaluation, his uncorrected and corrected distance vision in both eyes was 20/40 or better. The uncorrected near vision in both eyes was 20/70 and the corrected near vision in both eyes was 20/40 or better. 
The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. Pupil diameter was 3mm for both eyes and the pupils were round and reactive to light. There was not an afferent pupillary defect. 
The Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. The Veteran did not have a corneal irregularity that resulted in severe irregular astigmatism or diplopia. The Veteran’s external examination including lids and lashes showed a 2+ ptosis bilaterally. However, the presence of ptosis did not decrease the Veteran’s visual acuity or cause another visual impairment. Additionally, the ptosis did not cause disfigurement. 
The Veteran had a 2+ nasal and temporal pinguecula conjunctiva bilaterally.  However, the pinguecula did not decrease the Veteran’s visual acuity or cause another visual impairment. The Veteran’s cornea was 2-3+ arcus senilis bilaterally. The Veteran’s anterior chamber and irises were normal.
The Veteran’s macula and periphery were normal. However, the right optic disc had a cupping of 0.7 and the left eye had a cupping of 0.55. It was noted that this was a congenital anomaly and that there was no decrease in visual acuity or other visual impairment due to the optic disc. The Veteran’s vessels had a 2+ arterial attenuation bilaterally and the vitreous was PVD bilaterally. 
The Veteran did not have a contraction of his visual field, nor did he have a loss of visual field or a scotoma. Moreover, the Veteran did not have legal blindness based upon visual field loss, keratoconus, or pterygium. Additionally, he did not have scarring or disfigurement attributable to any eye condition; did not have any incapacitating episodes attributable to any eye condition in the 12 months prior to the examination; and his eye conditions did not impact his ability to work.  
The VA examiner opined that cataracts can develop prematurely when associated with a history of diabetes. However, the claimant’s cataracts were found to occur during the time which is typically associated with natural aging of the lens and are therefore unlikely a result of diabetes. Moreover, all of the Veteran’s eye conditions are commonly seen in patients over the age of 60. None of the above conditions appeared to be affecting the vision of the Veteran at the time of the examination and the Veteran’s eye examination results were found to be within normal limits.
In a November 2017 addendum report, an examiner opined that it was less than 50 percent likely that the Veteran’s reports of eye pain and twitching were related to his diabetes.  As to eye pain, the examiner noted that the Veteran had been diagnosed with age-related cataracts; that he was treated successfully with the surgery; that the cataracts resolved; and that cataracts do not cause pain.  As to eye twitching, which the examiner noted is also referred to as blepharospasm, the examiner stated that the condition is of unknown etiology and is not caused by cataracts.  Finally, the examiner noted that the most common symptom of active cataract is blurred vision before treatment, but that the symptoms are typically abated after treatment.
Based on a review of the evidence, both lay and medical, the Board finds that the preponderance of the evidence is against the assignment of a separate compensable rating for bilateral diabetic cataracts. The available evidence indicates that the Veteran's bilateral corrected visual acuity has consistently been 20/40 or better for both near and distance vision.  His complaints of eye pain, eye twitching, and blurred vision are shown to be unrelated to his diabetic cataracts.  Moreover, there is no evidence of incapacitating episodes related to such cataracts.  The appeal must be denied.
 
DAVID A. BRENNINGMEYER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Pierce, Associate Counsel 

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