MIGRAINE

RICHARD KETTLER · 2022 · Case ID: 22011079

MIXED

Summary

The veteran, who served from July 1973 to July 1979, appeals the denial of higher ratings for migraine headaches and bilateral diabetic retinopathy, as well as a TDIU for a period prior to April 1, 2010. The Board denied a higher rating for migraines prior to February 13, 2002, finding the frequency of prostrating attacks did not meet the criteria for a 50 percent rating, thus upholding the existing 30 percent rating. For diabetic retinopathy, the Board granted a 40 percent rating effective November 26, 2019, acknowledging the Veteran's blindness in the left eye and a 14.5-degree visual field contraction in the right eye, which, when combined with visual acuity, warranted the higher rating. A separate 10 percent rating was granted for bullous keratopathy in the left eye, based on scarring analogous to DC 7800, effective November 12, 2020. The Board denied TDIU prior to April 1, 2010, finding the Veteran was gainfully employed in a competitive work environment, despite some work restrictions and use of sick leave, and did not work in a protected environment. The benefit of the doubt doctrine was found not applicable in any of the denied claims due to a lack of approximate balance of evidence.

Rationale

Frequency of prostrating attacks did not meet 'very frequent' criteria for 50% rating.; Treatment records prior to Feb 13, 2002, did not support higher rating.; Benefit of doubt doctrine not applicable due to lack of evidence balance.

Special Benefit

TDIU

Diagnostic Code

8100

Docket No.

14-43 683

Full Decision Text

Citation Nr: 22011079
Decision Date: 02/25/22 Archive Date: 02/25/22

DOCKET NO. 14-43 683
DATE: February 25, 2022

ORDER

Entitlement to a rating higher than 30 percent for migraine headaches prior to February 13, 2002 and entitlement to a rating higher than 50 percent thereafter is denied.

Entitlement to a rating higher than 30 percent prior to November 26, 2019 for bilateral diabetic retinopathy with blindness in the left eye is denied; however, entitlement to a 40 percent rating thereafter is granted.

Entitlement to a separate 10 percent rating for bullous keratopathy is granted.

Entitlement to a total disability based on individual unemployability prior to April 1, 2010 is denied.

FINDINGS OF FACT

1. Prior to February 13, 2002, the Veteran's headaches had characteristic prostrating attacks of migraines occurring on average once a month. After February 13, 2002, the Veteran's headaches most nearly approximated frequent completely prostrating and prolonged attacks productive of severe economic inadaptability

2. For the entire period on appeal, the Veteran has no more than light perception in his left eye and his right eye visual acuity has measured 20/40 or better. After November 26, 2019, however, the Veteran has had concentric contractions measuring 14.5 degrees of visual field preserved in the right eye, and he has also received between three and five laser treatments.

3. The Veteran's bullous keratopathy is productive of a scar that is at least one-quarter inch (.6 centimeters) wide.

4. Prior to April 1, 2010, the Veteran was employed in a non-protected work environment and, thus, was able to secure or follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for a rating higher than 30 percent for headaches prior to February 13, 2002 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100.

2. The criteria for a rating higher than 30 percent for bilateral diabetic retinopathy have not been met prior to November 26, 2019; however, a 40 percent rating is warranted thereafter. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.25, 4.75-4.79, DC 6070, 6064, 6040.

3. The criteria for a separate 10 percent rating for bullous keratopathy have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.25, 4.75-4.79, DC 6037, 7800

4. The criteria are not met for a TDIU prior to April 1, 2010. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1973 to July 1979. The Board referred the issue of entitlement to an earlier effective date for service connection for migraine headaches in June 2005, December 2008, and April 2011. In July 2019 and January 2021, the Board remanded the case for further development.

1. Entitlement to a rating higher than 30 percent prior to February 13, 2002 is denied.

The Veteran contends he is entitled to a rating higher than 30 percent for his headaches prior to February 13, 2002 and higher than 50 percent thereafter. To this end, he argues that his treatment records demonstrate a higher evaluation is warranted based on frequent treatment for migraine headaches beginning in December 1980. He also argues that his treatment records demonstrate an increase in use of pain medication as an indication of the increasing severity of his headaches. He also points to a September 1981 treatment record which indicates he had reported experiencing headaches lasting 3 or 4 days every 3 to 4 months. In his December 2014 Form 9, the Veteran also points to a September 1985 medical certificate noting his headaches occurred every two months. Neurology clinic notes from October 1985, June 1988, January 1989 and February 1989, and September 1992 also indicate the Veteran was experiencing severe headaches. On February 13, 2002, the Veteran submitted written correspondence indicating his headaches had worsened in severity as well as frequency. The Veteran was afforded VA examinations in April 1981 and February 2021, along with a medical opinion and addendum opinion from February 2021 and September 2021.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In deciding this appeal, the Board has considered whether separate ratings are warranted for different periods of time, based on the facts found, a practice known as "staged" ratings that is employed irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). As will be discussed, the Veteran is currently assigned a rating of 30 percent prior to February 13, 2002 and a higher 50 percent rating thereafter. The evidence of record, including treatment records and VA examinations, do not support higher ratings, to include extraschedular consideration.

Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. According to DC 8100, a 30 percent rating is warranted for migraines involving characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define a number of terms, including "prostrating" and, consequently, this has been the subject of several recent Court decisions.

In Johnson v. Wilkie, 30 Vet. App. 245 (2018), referencing the Webster's Third New International Dictionary of the English Language Unabridged 1822 (1966), the Court, determined that the rating criteria were successive and indicated that "prostrating" meant "lacking in vitality or will: powerless to rise: laid low." Id; see also Holmes v. Wilkie, 2020 U.S. Vet. Claims LEXIS 2131 (November 25, 2020). The Board also notes, by way of reference, that Dorland's Illustrated Medical Dictionary 1531 (32nd Ed. (2012)) defines "prostration" as "extreme exhaustion or powerlessness." The Court further defines the modifier "completely" as used in the 50 percent criteria to mean "the veteran must be rendered entirely powerless. . . ." and defined the phrase "productive of severe economic inadaptability" to mean either producing or capable of producing severe economic inadaptability. See Holmes, 2020 U.S. Vet. Claims LEXIS 2131.

Also, notably, the Court has stated that the term "productive of severe economic inadaptability" is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004
the 50 percent criteria to mean "the veteran must be rendered entirely powerless. . . ." and defined the phrase "productive of severe economic inadaptability" to mean either producing or capable of producing severe economic inadaptability. See Holmes, 2020 U.S. Vet. Claims LEXIS 2131.

Also, notably, the Court has stated that the term "productive of severe economic inadaptability" is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). Regarding "severe economic inadaptability," nothing in the 50 percent criteria requires that the claimant be completely unable to work to qualify for that rating. Id.

Given the Court's discussion of DC 8100 and pursuant both to the dictionary definition of "prostrating" proffered in Johnson, as well as the definition provided in Dorland's Medical Dictionary, the Board finds that the Veteran's lay statements and treatment records support the currently assigned 50 percent initial rating for the Veteran's migraines beginning February 13, 2002, the date he indicates his symptoms had worsened in frequency and severity. 30 Vet. App. 245; See also Holmes, 2020 U.S. Vet. Claims LEXIS 2131. Specifically, the Veteran indicated in his February 2002 that he had been experiencing severe headaches that forced him to go to bed. His headaches also produced light sensitivity, noise sensitivity, and motion sensitivity, causing him to miss work several times in the prior year. He did not, however, specifically indicate when during the previous year his headaches had begun to worsen and treatment notes in the year prior to his February 2002 correspondence are silent as to any indication of an increase in frequency of the Veteran's headaches. Consequently, an earlier date for the currently assigned 50 percent rating is unwarranted.

Given the less frequent nature of the Veteran's migraines prior to February 13, 2002, the Board finds this level of symptoms and consequent impairment are more in line with a lesser 30 percent rating, meaning comparable to migraines occurring on average once a month. As mentioned, treatment records from September 1981 and September 1985 indicate the Veteran was experiencing prostrating attacks anywhere between every three to four months to, at most, every month. While the Board does not doubt the sincerity of the Veteran's reports and the severity of his headaches, the record does not support a finding that he was experiencing prostrating headaches with the requisite frequency to be considered "very frequent" under DC 8100; meaning, on average more than once a month.

In other words, the requisite "frequency, severity and duration" for the higher 50 percent is not supported by the record prior to February 13, 2002 largely due to the lack of frequency of the Veteran's migraines. The Board consequently finds a rating higher than 30 percent is unwarranted for this prior portion of the "staged" rating period (i.e., the period prior to February 13, 2002). See Holmes v. Wilkie, 2020 U.S. Vet. Claims LEXIS 2131 (citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 Fed. Cir. 2013 in comparing the DC 8100 migraine schedular criteria to the frequency, severity, and duration analysis relevant to evaluating a psychiatric disorder under 38 C.F.R. § 4.130).

While the Veteran still appears to have some "characteristic prostrating attacks," as contemplated by the higher the 50 percent rating, particular with regards to severity and duration, on the whole, the record prior to February 13, 2002 does not reflect the "very frequent, completely prostrating and prolonged attacks" suggestive of his entitlement to this higher rating. For example, an April 1980 VA examination indicates the Veteran was vague about how often his headaches occurred. Elsewhere in the report, they are noted to be "occasional." As previously mentioned, the Veteran also at times described them as occurring every three to four months and at other times, every month, or every other month.

While the Board acknowledges the Veteran's contentions that he is entitled to a rating higher than 30 percent prior to February 13, 2002, the Board does not find the Veteran's reports reach the level of very frequent, completely prostrating, and prolonged attacks. Concerning his reports of chronic headaches at most once per month throughout the review period prior to February 13, 2002
, an April 1980 VA examination indicates the Veteran was vague about how often his headaches occurred. Elsewhere in the report, they are noted to be "occasional." As previously mentioned, the Veteran also at times described them as occurring every three to four months and at other times, every month, or every other month.

While the Board acknowledges the Veteran's contentions that he is entitled to a rating higher than 30 percent prior to February 13, 2002, the Board does not find the Veteran's reports reach the level of very frequent, completely prostrating, and prolonged attacks. Concerning his reports of chronic headaches at most once per month throughout the review period prior to February 13, 2002, there is no indication those headaches manifest in frequent prostrating attacks. The Board acknowledges the Veteran is competent to report the severity of his attacks; however, the record is silent for any evidence that he experienced them with the frequency contemplated by the higher 50 percent rating, which requires "very frequent" attacks. Accordingly, the Board finds that a higher 50 percent rating prior to February 13, 2002 is not warranted.

In denying any higher rating, the Board finds the benefit of the doubt doctrine is not applicable because there is not an approximate balance of evidence for versus against the claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. See also Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

Extraschedular Consideration

With regards to the Veteran's contention that he is entitled to a rating higher than 50 percent for his migraines after February 13, 2002, the Board finds there is no basis for a referral for extraschedular consideration. An extraschedular disability rating is warranted if a case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. See 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

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 id. 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.

While the Veteran has reported taking sick days due to his headaches, there are no indications they have been with unusual frequency otherwise not contemplated by his current rating. Indeed, the question of the impact on employability is the second question addressed under Thun, but not until it is first shown that there is an "exceptional" disability picture with symptoms not contemplated by the rating schedule. No such exceptionality has been shown and no argument as to specifically what symptoms the Veteran has that are not contemplated by Diagnostic Code 8100. Further, the Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the Board finds that referral for consideration of a higher rating on an extraschedular basis is not warranted.

In summary, the current 50 percent rating for the Veteran's migraine headaches is the maximum available schedular rating, and referral for extraschedular consideration is not warranted. In denying any higher rating, the Board finds the benefit of the doubt doctrine is not applicable because there is not an approximate balance of evidence for versus against the claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. See also Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi,
(2017). Therefore, the Board finds that referral for consideration of a higher rating on an extraschedular basis is not warranted.

2. Entitlement to a rating higher than 30 percent prior to November 26, 2019 for bilateral diabetic retinopathy with blindness in the left eye is denied; however, entitlement to a 40 percent rating thereafter is granted.

The Veteran contends he is entitled to a rating higher than 30 percent for his eye conditions, which include blindness in the left eye (no more than light perception) and bilateral retinopathy. He is currently rated under DC 6064 for the entire review period, which provides ratings where there is no more than light perception in one eye (the poorer eye). He has been in receipt of a 30 percent rating since February 13, 2002.

The Veteran was provided a VA examination in February 2004, during which time his visual acuity measured 20/25 in his right eye and light perception only for the left eye. Decreased visual field of the right eye was noted but not quantified and there is no indication as to whether a Goldmann chart was used to measure the visual field. The decrease in visual field was, according to the examiner, attributable to the Veteran's diabetes and pan retinal photocoagulation (PRP). An April 2004 treatment note from a private provider, however, indicated the Veteran's right eye had a full visual field. Similarly, in June 2008, treatment notes indicate the Veteran's right eye was functionally normal, also with a full vision field.

The Board notes that prior to December 10, 2008, DC 6070 (rather than DC 6064) was the diagnostic code assigned where there is blindness in one eye, having only light perception, and visual acuity in the other eye 20/40. After December 2008, DC 6040, instead, provides a 30 percent rating where there is blindness in one eye, having only light perception, and visual acuity in the other eye 20/40. 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.

Given the Veteran's blindness in his left eye and his 20/40 or better vision in his right eye, without additional decrease in visual field that would warrant a higher rating under a different DC, a rating of 30 percent at maximum is warranted under either DC 6064 or DC 6070 during this period. The Board acknowledges the right eye decrease in visual field noted by the 2004 VA examiner; however, treatment records from this period are otherwise silent for any indication of a compensable decrease in visual field, therefore affords the findings of the 2004 VA examiner less probative value. After December 10, 2008, DC 6064 was designated to address disabilities where there is no more than light perception in one eye and not anatomical loss of an eye. However, the Board does not find it necessary to change diagnostic codes, given the Veteran's rating would be remain the same. See 38 C.F.R. §§ 4.21, 4.27; see also Butts v. Brown, 5 Vet. App. 532 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence).

Regarding the Veteran's diabetic retinopathy, prior to the December 2008 revision, the rating schedule for eye disability did not include a specific rating for retinopathy. However, the December 2008 revision assigned Diagnostic Code 6006 to retinopathy, and a later May 2018 revision assigned Diagnostic Code 6040 to diabetic retinopathy while keeping Diagnostic Code 6006. Accordingly, the Board has also evaluated the Veteran's claim for an increased rating under both DCs 6064 and 6006. Under the May 2018 revision, both DCs 6006 and 6040 are rated
the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence).

Regarding the Veteran's diabetic retinopathy, prior to the December 2008 revision, the rating schedule for eye disability did not include a specific rating for retinopathy. However, the December 2008 revision assigned Diagnostic Code 6006 to retinopathy, and a later May 2018 revision assigned Diagnostic Code 6040 to diabetic retinopathy while keeping Diagnostic Code 6006. Accordingly, the Board has also evaluated the Veteran's claim for an increased rating under both DCs 6064 and 6006. Under the May 2018 revision, both DCs 6006 and 6040 are rated pursuant to the General Rating Formula for Diseases of the Eye. Prior to the May 2018 revision, DC 6006 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009.

Prior to May 2018, the General Rating Formula for DCs 6000 through 6009 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. Treatment notes are silent for any prescribed bed rest, therefore, the Veteran is not entitled to additional compensation under the pre May 2018 definition of incapacitating episodes.

After May 2018, the General Rating Formal 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. Regarding visual impairment, the amendments made no substantive changes to how visual acuity is rated. Regarding visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated.

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.

Here, the Board notes that the Veteran's November 2020 examination indicated he had received between three and five laser treatments within the previous 12 months. A November 26, 2019 treatment note similarly notes "extensive" laser treatments, though without a specific timeframe attached. This would warrant an evaluation of 20 percent. However, as noted below, the Veteran's decreased visual field, when combined under § 4.25, result in a higher evaluation.

Visual impairment is rated based on the consideration of three factors: (1) impairment of visual acuity (excluding developmental errors of refraction); (2) visual field; and (3) muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. 38 C.F.R. § 4.75(b). Examinations of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Id.

As to impairment of visual acuity, evaluations are 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. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. 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).

As to impairment of visual field, evaluation of visual field is based on the remaining field of vision in each eye. The examiner must record the remaining visual field of at least 16 meridians 2212 degrees apart for each eye, even though only the visual field at eight principal meridians 45 degrees apart will be used for rating purposes.

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.

Under old 38 C.F.R. § 4.84a, DC 6080 (2008), measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. 38 C.F.R. § 4.76 (2008).

Under 38 C.F.R. § 4.76a, Table III, the normal visual field extent at the 8 principal meridians totals 500 degrees. The normal field for the 8 principal meridians is 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 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 38 C.F.R. § 4.76a, Table III.

The degrees lost are then added together to determine the total number of degrees lost, which are subtracted from 500. The total remaining degrees of the visual field are then divided by eight to represent the average contraction for rating purposes. 38 C.F.R. § 4.76a (2008).

Under DC 6080, a 10 percent rating is assigned for concentric contraction of the visual field to 60 degrees, but not to 45 degrees, unilaterally; concentric contraction of the visual field to 45 degrees, but not to 30 degrees, unilaterally; concentric contraction of the visual field to 30 degrees, but not to 15 degrees, unilaterally; loss of the nasal half of the visual field unilaterally; loss of the temporal half of the visual field unilaterally; or if the Veteran has a large or centrally located unilateral scotoma. 38 C.F.R. §
rating purposes. 38 C.F.R. § 4.76a (2008).

A 20 percent rating is assigned for concentric contraction of the visual field to 60 degrees, but not to 45 degrees, bilaterally; concentric contraction of the visual field limited to 15 degrees, but not to 5 degrees, unilaterally; or loss of the nasal half of the visual field bilaterally.

A 30 percent rating is assigned for concentric contraction of the visual field to 45 degrees, but not to 30 degrees, bilaterally; concentric contraction of the visual field limited to 5 degrees, unilaterally; loss of the temporal half of the visual field bilaterally; or homonymous hemianopsia.

A 50 percent rating is assigned for concentric contraction of the visual field to 30 degrees, but not to 15 degrees, bilaterally.

A 70 percent rating is assigned for concentric contraction of the visual field to 15 degrees, but not to 5 degrees, bilaterally.

A 100 percent disability rating is assigned for concentric contraction of the visual field to 5 degrees, bilaterally.

Under new DC 6080 rating criteria, a 10 percent rating is assigned for a unilateral scotoma; with remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45 degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally.

A 30 percent rating is assigned for remaining field of 31 to 45 degrees unilaterally; concentric contraction of visual field unilaterally; loss of temporal half of visual field bilaterally; and homonymous hemianopia visual filed defects.

A 50 percent rating is assigned for remaining field of 16 to 30 degrees bilaterally.

A 70 percent rating is assigned for remaining field of 6 to 15 degrees bilaterally.

A 100 percent rating is assigned for concentric contraction of visual field with remaining field of 5 degrees.

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).

When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the evaluation is determined by separately evaluating the visual acuity and visual field defect (expressed as a level of visual acuity) and combined under the provisions of 38 C.F.R. § 4.25. See 38 C.F.R. § 4.77(c).

In June 2015, the Veteran submitted argument that he is entitled to higher ratings based on visual field defects and noted that treatment records documented he had superior and inferior arcuate defects (types of visual field defects). The Board acknowledges treatment notes from September 2013 note superior arcuate defect and inferior arcuate defect correlating to the Veteran's PRP scarring. In June 2015, he similarly argued that he was entitled to a higher evaluation due to a loss of visual field in his left eye. To this end, the Board notes, again, that the Veteran currently has no more than light perception in his left eye, which also contemplates a total loss of visual field in the left eye. Therefore, the Veteran would not be awarded additional compensation for his left eye for a loss of visual field because it is already contemplated by the applicable rating criteria (here, the Board has assigned the pre-December 2008 version of DC 6070).

In November 2014, the Veteran received another VA examination, during which time his vision measured 20/40 in his right eye and he continued to experience blindness with no more than light perception in his left eye. He was noted to have a loss
visual field in his left eye. To this end, the Board notes, again, that the Veteran currently has no more than light perception in his left eye, which also contemplates a total loss of visual field in the left eye. Therefore, the Veteran would not be awarded additional compensation for his left eye for a loss of visual field because it is already contemplated by the applicable rating criteria (here, the Board has assigned the pre-December 2008 version of DC 6070).

In December 2020, the Veteran received an additional VA examination, at which time it was noted that his visual field was severely reduced in his right eye. Treatment notes from November 26, 2019 similarly note the Veteran's poor peripheral vision. Scarring visible to the naked eye was noted in his left eye and was attributed to Bullous Keratopathy. This diagnosis was noted to be directly related to the Veteran's diabetic retinopathy. The scar was found to be .6 cm at its widest section. The examiner further noted that the Veteran's entire cornea on his left eye is completely opaque and scarred over. His entire cornea is a blueish haze and visible with naked eye.

Specifically, in December 2020, visual field testing revealed contraction of the right visual field to 20 degrees down (65 normal, for a loss of 45), 22 degrees down nasally (50 normal, for a loss of 28), 25 degrees nasally (60 normal, for a loss of 35), 25 degrees up nasally (55 normal, for a loss of 30), 25 degrees up (45 normal, for a loss of 20), 30 degrees up temporally (55 normal, for a loss of 65), 20 degrees temporally (85 normal, for a loss of 65), and 25 degrees down temporally (85 normal, for a loss of 60). The total loss of degrees of visual fields of the right eye was 308 degrees. 500 minus 308 total degrees lost equals 116 total remaining degrees of visual field divided by 8 that resulted in an average concentric contraction of 14.5 degrees of visual field preserved in the right eye.

At this juncture, the Veteran's worst corrected visual acuity was 20/40 or better, in his right eye, with only light perception in his left eye (left eye blindness). His worst average concentric contraction was 14.5 degrees of visual field preserved in the right eye, with no more than light perception in his left eye. As noted previously, unilateral concentric contraction with a remaining field of 6 to 15 degrees warrants a 20 percent evaluation. Thus, the Veteran's 30 percent rating under DC 6064 from his decreased visual acuity, when combined with his concentric contractions of 14.5 degrees in his right visual field warranting a 20 percent rating under § 4.25, equates to an overall 40 percent rating.

The Veteran received an additional VA examination in March 2021. According to the March 2021 VA examiner, the Veteran was also diagnosed with pan retinal photocoagulation scarring right eye attributable to his diabetes and which produced decreased vision (also noted by the earlier 2004 examiner).

The Board has considered whether a higher rating or any additional ratings are warranted under an alternative diagnostic code but finds that there is no indication that the Veteran has impairment of muscle function, or incapacitating episodes to warrant any higher or additional ratings. Here, the Veteran's bilateral eye disability is manifested by corrected distance vision of 20/40 or better in the right eye and no more than light perception in the left eye, which warrants a 30 percent rating under DC 6064 and its predecessor DC 6070. While no compensable visual field defects are noted prior to November 2019, the November 2020 VA examiner noted that the average concentric contraction was 14.5 degrees of visual field preserved in the Veteran's right eye.

Consequently, while a rating higher than 30 percent is unwarranted prior to November 26, 2019, the Board finds a higher rating of 40 percent warranted thereafter based on the combination of the Veteran's decreased visual acuity and his decreased visual field.

3. Entitlement to a separate 10 percent rating for bullous keratopathy is granted beginning November 12, 2020.

In addition, the Board finds a
6064 and its predecessor DC 6070. While no compensable visual field defects are noted prior to November 2019, the November 2020 VA examiner noted that the average concentric contraction was 14.5 degrees of visual field preserved in the Veteran's right eye.

3. Entitlement to a separate 10 percent rating for bullous keratopathy is granted beginning November 12, 2020.

In addition, the Board finds a separate rating warranted for scarring noted on the Veteran's left eye based on observations made during his November 2020 VA examination. Specifically, scarring visible to the naked eye was noted in his left eye and was attributed to Bullous Keratopathy, which was in turn attributed to his diabetic retinopathy. The scar was found to be .6 cm at its widest section (in other words, on quarter inch wide). The examiner further noted that the Veteran's entire cornea on his left eye is completely opaque and scarred over. His entire cornea is a blueish haze and visible with naked eye.

The Board finds this condition analogous to pinguecula, which is currently rated under DC 6037 and which, in turn, instructs to rate based on DC 7800 for disfigurement.

Diagnostic Code 7800, for burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7800 was not changed by the August 13, 2018, amendments.

Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118.

Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: 1) a scar 5 or more inches in length; 2) a scar at least one-quarter inch wide at widest part; 3) surface contour of scar elevated or depressed on palpation; 4) scar adherent to underlying tissue; 5) skin hypo- or hyper-pigmented in an area exceeding six square inches; 6) skin texture abnormal in an area exceeding six square inches; 7) underlying soft tissue missing in an area exceeding six square inches; and, 8) skin indurated and inflexible in an area exceeding six square inches. Id.

The Board acknowledges a subsequent VA examiner's negative opinion in March 2021, during which time it was noted that the previously identified scarring was re-characterized as ptosis and phthisis bulbi rather than a scar. However, this examiner also noted the Veteran's visibly noticeable clouded cornea and essentially described the same condition as the previous examiner. Therefore, the Board affords the Veteran the benefit of the doubt and awards him a separate 10 percent rating for his left eye disfigurement, which has been productive of a scar at least a quarter-inch wide.

4. Entitlement to a total disability based on individual unemployability prior to April 1, 2010 is denied.

The Board observes that the Veteran has been granted a TDIU beginning April 1, 2010. The Veteran argues, however, that he is entitled to a TDIU even prior to this date because he was employed in a protected work environment due to medical restrictions placed upon him beginning in May 2008. Employment documents, however, indicate that the Veteran worked full
previous examiner. Therefore, the Board affords the Veteran the benefit of the doubt and awards him a separate 10 percent rating for his left eye disfigurement, which has been productive of a scar at least a quarter-inch wide.

4. Entitlement to a total disability based on individual unemployability prior to April 1, 2010 is denied.

The Board observes that the Veteran has been granted a TDIU beginning April 1, 2010. The Veteran argues, however, that he is entitled to a TDIU even prior to this date because he was employed in a protected work environment due to medical restrictions placed upon him beginning in May 2008. Employment documents, however, indicate that the Veteran worked full-time as an electrician as a civilian employee at a military base from October 1975 until his retirement in March 2010.

Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19.

As further provided by 38 C.F.R. § 4.16(a), "marginal employment shall not be considered substantially gainful employment." For purposes of TDIU, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. For example, the amount established as the poverty threshold for one person in 2010 was $11,139. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed on February 23, 2022).

In 2009, the Veteran reports that he earned $48,084. Marginal employment may, however, also be held to exist, on a facts-found basis including, but not limited to, employment in a "protected environment" such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a).

In Cantrell v. Shulkin, 28 Vet. App. 382 (2017), the Court addressed this method of establishing marginal employment which required the Court to review the meaning of employment in a protected work environment. The Court found that the plain language of § 4.16(a) does not expressly define employment in a protected environment and that the non-exhaustive list of examples of what may constitute employment in a protected environment, i.e.: a family business or sheltered workshop fails to resolve this uncertainty. The Court also determined that it was unable to defer to the Secretary's definition, finding instead that the Secretary had refused to proffer any definition of employment in a protected environment for the Court to analyze. Absent an articulated standard for employment in a protected environment, the Court concluded that it was unable to effectively review the Board's decision.

The Board recognizes that "protected environment" has not been defined by regulation. Merriam-Webster's Collegiate Dictionary offers several definitions of the word "protect," but one that appears to be applicable in this inquiry is "to save from contingent financial loss." See Merriam-Webster's Collegiate Dictionary (online) (2017). One definition of "contingent" is "likely but not certain to happen: possible." Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one's employment is not based on merit alone, but rather is established to save the individual from likely financial loss. In other words, a protected environment is an employment environment that would not exist but for the willingness of the employer to hire and pay the employee for altruistic reasons.

However, mere accommodations to a veteran by an employer do not, as a matter of law, establish a protected work environment. The Board instead looks to the actual environment the veteran
." See Merriam-Webster's Collegiate Dictionary (online) (2017). One definition of "contingent" is "likely but not certain to happen: possible." Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one's employment is not based on merit alone, but rather is established to save the individual from likely financial loss. In other words, a protected environment is an employment environment that would not exist but for the willingness of the employer to hire and pay the employee for altruistic reasons.

However, mere accommodations to a veteran by an employer do not, as a matter of law, establish a protected work environment. The Board instead looks to the actual environment the veteran is working within, including any accommodations, to see if he works in a protected work environment. In the Board's view, a protected work environment is one which, at a minimum, recognizes that a Veteran could not work in a competitive work environment, and so employs the veteran with allowances for those deficiencies. There is no such indication here that the Veteran would be unable to work in a competitive work environment prior to his voluntary retirement in April 2010.

During his career, the Veteran had certain work restrictions beginning in June 2008 due to his partial blindness. A June 2008 treatment note indicates this work restriction was in place for less than 6 weeks. The Veteran has further indicated he found it necessary to use increasing amounts of sick leave in the years leading up to his retirement due in part to his service-connected disabilities, to include his migraines and his partial blindness. The record also reflects that he was restricted from certain elements of his job as an electrician such as bucket work due to his partial blindness. These restrictions, however, do not indicate the Veteran was working in a protected environment.

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Consequently, the Board finds that the Veteran has been gainfully employed throughout the period prior to April 1, 2010, during which he claims an entitlement to a TDIU. As such, the persuasive evidence suggests that the Veteran is not entitled to a TDIU prior to April 1, 2010. In denying this claim, the Board finds the benefit of the doubt doctrine is not applicable because there is not an approximate balance of evidence for versus against the claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. See also Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

Richard Kettler

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. B. Kucera

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.

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