[Federal Register: November 10, 2008 (Volume 73, Number 218)]
[Rules and Regulations]
[Page 66543-66554]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10no08-17]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AH43
Schedule for Rating Disabilities; Eye
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
Schedule for Rating Disabilities (Rating Schedule) by updating the
portion of the schedule that addresses disabilities of the eye. These
amendments ensure that the schedule uses current medical terminology,
provides unambiguous criteria for evaluating disabilities, and
[[Page 66544]]
incorporates pertinent medical advances.
DATES: Effective Date: This amendment is effective December 10, 2008.
Applicability Date: These amendments shall apply to all
applications for benefits received by VA on or after December 10, 2008.
FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, Policy
and Regulations Staff (211D), Compensation and Pension Service,
Veterans Benefits Administration, Department of Veterans Affairs, 810
Vermont Ave., NW., Washington, DC, 20420, (727) 319-5847. (This is not
a toll-free number.)
SUPPLEMENTARY INFORMATION: As part of its review of the Schedule for
Rating Disabilities (38 CFR part 4), VA published a proposal to amend
the portion of the schedule pertaining to the eye in the Federal
Register of May 11, 1999 (64 FR 25246-25258). Interested persons were
invited to submit written comments on or before July 12, 1999. We
received comments from the Disabled American Veterans, the Blinded
Veterans Association, and one other interested party.
Section 4.75 General Considerations for Evaluating Visual Impairment
We proposed to add paragraph (c) to Sec. 4.75 to codify the
longstanding VA practice that when visual impairment of only one eye is
service-connected, either directly or by aggravation, the visual acuity
of the nonservice-connected eye must be considered to be 20/40, subject
to the provisions of 38 CFR 3.383(a). Section 3.383(a) directs that
when there is blindness in one eye as a result of service-connected
disability and blindness in the other eye as a result of nonservice-
connected disability, VA will pay compensation as if both were service-
connected.
We also proposed to remove current Sec. 4.78, which provides a
method of determining the level of disability when the visual
impairment is aggravated during military service. As stated in the
proposed rule, Sec. 4.78 is not consistent with VA's method of
evaluating visual impairment incurred in service in one eye only, nor
is it consistent with VA's statutory scheme governing VA benefits. Its
application may, in some cases, result in a higher evaluation for a
condition that is aggravated by service than for an identical condition
incurred in service, which is not equitable. Section 4.78 is also
inconsistent with the method of evaluating other paired organs, such as
the hands, where only the service-connected hand is evaluated,
regardless of the status of the nonservice-connected hand, subject to
the provisions of Sec. 3.383(a).
One commenter challenges the rule proposed in Sec. 4.75(c) as
contrary to legal authority and long-standing VA practice. According to
the commenter, the proper rating of visual disability always considers:
(1) The vision of each eye, regardless of whether the origin of the
service-connected disability is one or both eyes and (2) the entire
disability, regardless of whether service connection is based on
incurrence or aggravation. The commenter stated that ``service
connection is always bilateral in the legal sense.'' The commenter
stated that VA used the term ``service connected'' in current Sec.
4.78 in its literal sense and that the nonservice-connected visual
impairment to which Sec. 4.78 refers ``denotes the origin of the
disability, not its legal status.'' The commenter further asserted that
``service connection attaches to the impairment of function or
disability and not to the organ or body part per se'' and that
``service connection is accordingly established for visual impairment
that is incurred in or aggravated by service and is not limited to the
eye with the service-related disability.'' The commenter cited VA's
Office of the General Counsel opinion VAOPGC 25-60 (9-13-60) and 38
U.S.C. 1160 in support of these assertions.
To an extent, the commenter is correct that the proper rating of
visual disability always considers the vision of each eye, regardless
of whether the origin of the service-connected disability is one or
both eyes. However, if visual impairment of only one eye is service-
connected, the vision in the other eye is considered to be normal,
i.e., 20/40. To do otherwise would violate 38 CFR 4.14, which provides
that ``the use of manifestations not resulting from service-connected
disease or injury in establishing the service-connected evaluation * *
* [is] to be avoided.'' Proposed Sec. 4.75(c) merely states long-
standing VA practice in this regard.
The commenter is mistaken about the entire disability being
considered, regardless of whether service connection is based on
incurrence or aggravation. As 38 CFR 4.22 plainly states: ``In cases
involving aggravation by active service, the rating will reflect only
the degree of disability over and above the degree existing at the time
of entrance into the active service * * *. It is necessary therefore,
in all cases of this character[,] to deduct from the present degree of
disability the degree, if ascertainable, of the disability existing at
the time of entrance into active service. * * *''
Although there are certain specified exceptions (such as 38 U.S.C.
1151 and 1160), generally the statutes governing VA benefits authorize
compensation for service-connected disability only. 38 U.S.C. 101(13),
1110, 1131. Only disabilities that result from injury or disease
incurred or aggravated in service may be service connected. 38 U.S.C.
1110, 1131; 38 CFR 3.310(a). VAOPGC 25-60 addressed whether VA had
authority to award a 100-percent disability rating for visual
impairment where there is service-connected loss or loss of use of one
eye and nonservice-connected loss or loss of use of the other eye
arising after service. The opinion held that VA did not have statutory
authority to compensate veterans for nonservice-connected visual
disability arising after service. However, Congress later provided an
exception in 38 U.S.C. 1160. If a veteran has visual impairment in one
eye as a result of service-connected disability and visual impairment
in the other eye as a result of nonservice-connected disability not the
result of the veteran's own willful misconduct and either (1) the
impairment of visual acuity in each eye is rated at a visual acuity of
20/200 or less or (2) the peripheral field of vision for each eye is 20
degrees or less, VA must pay compensation to the veteran as if the
combination of both disabilities were the result of service-connected
disability. 38 U.S.C. 1160(a). Thus, VA's authority to consider
nonservice-connected visual disability for compensation purposes is
limited to the circumstances described in section 1160(a). Absent the
degree of visual impairment in both eyes prescribed in section 1160(a),
nonservice-connected visual disability is not compensable and therefore
not to be considered when rating service-connected disability. Where a
claimant has a service-connected disability of only one eye and a
nonservice-connected visual impairment but not of the degree prescribed
by section 1160(a) in the other eye, deeming the nonservice-connected
eye as having a visual acuity of 20/40 results in accurate evaluations
that are based solely upon service-connected visual impairment. Our
proposal to deem the nonservice-connected eye as having a visual acuity
of 20/40 is consistent with current law. We make no change based upon
this comment.
This commenter also asserted that VA should consider hearing loss
less than total deafness and visual impairment less than blindness when
evaluating impairment of the nonservice-connected ear and eye,
respectively. The
[[Page 66545]]
commenter disagreed with VA's Office of the General Counsel opinion
VAOPGCPREC 32-97, which interpreted the statutes governing compensation
for service-connected disabilities and concluded that where a claimant
has service-connected hearing loss in one ear and nonservice-connected
hearing loss in the other ear, for purposes of evaluating the service-
connected disability, the hearing in the ear with nonservice-connected
hearing loss should be considered normal, unless the claimant is
totally deaf in both ears. The issue raised by the commenter was mooted
by the Veterans Benefits Act of 2002, Public Law 107-330, which
authorized VA, when a veteran has compensable service-connected hearing
loss in one ear and nonservice-connected deafness in the other ear, to
assign an evaluation and pay compensation as though both ears were
service-connected, and the Dr. James Allen Veteran Vision Equity Act of
2007, Public Law 110-157, which authorized VA, when a veteran has
service-connected visual impairment in one eye and nonservice-connected
visual impairment in the other eye of the degree described above, to
assign an evaluation and pay compensation as though both eye
disabilities were service connected. See 38 U.S.C. 1160(a)(1) and (3).
Further, while Sec. 4.78 addressed aggravation, it is unnecessary
to include this in this regulation as it is covered in 38 CFR 4.22.
Section 4.78's discussion of aggravation was duplicative of Sec. 4.22.
Proposed Sec. 4.75(d) stated that the evaluation for visual
impairment of one eye may be combined with evaluations for other
disabilities that are not based on visual impairment and included
disfigurement as an example. One commenter suggested that we evaluate
phthisis bulbi (shrunken eyeball) or other serious cosmetic defect of
the eyeball at 40 percent instead of referring the rater to diagnostic
code 7800 (``Scars, disfiguring, head, face, or neck'') under the skin
portion of the Rating Schedule. The commenter felt this would provide a
standard evaluation for this problem.
The portion of the Rating Schedule that addresses the skin has been
revised (67 FR 49590, July 31, 2002) since the comment was written.
Diagnostic code 7800 is no longer limited to evaluation of scarring of
the skin. The revised evaluation criteria include a 30-percent
evaluation for gross distortion or asymmetry of a paired set of
features with visible or palpable tissue loss. Since by definition,
phthisis bulbi is a shrunken or atrophic eyeball, there would be
visible or palpable tissue loss, and this level of evaluation under
diagnostic code 7800 would apply. Any other cosmetic defect of the
eyeball that meets the criteria for disfigurement could also be
evaluated under diagnostic code 7800, with the level of evaluation
based on application of the criteria for disfigurement. Therefore, we
make no change based on this comment.
Proposed Sec. 4.75(e) instructed adjudicators to increase
evaluations by 10 percent in situations where a claimant has anatomical
loss of one eye with inability to wear a prosthesis. One commenter
suggested that 10 percent be added in the absence of anatomical loss
but with deformity and inability to wear a prosthesis. The evaluation
criteria of diagnostic code 7800 would apply in this situation. The
level of evaluation for deformity and inability to wear a prosthesis
could be more or less than 10 percent, depending on the extent of
disfigurement. However, to avoid pyramiding under 38 CFR 4.14 (``the
evaluation of the same manifestation under different diagnoses [is] to
be avoided''), an evaluation under diagnostic code 7800 would preclude
an additional 10 percent for the same deformity under Sec. 4.75. We
have decided to also specify in Sec. 4.75(e) that the 10-percent
increase in evaluation under that provision for anatomical loss of one
eye with inability to wear a prosthesis precludes an evaluation under
diagnostic code 7800 based on gross distortion or asymmetry of the eye.
We made nonsubstantive revisions to proposed Sec. 4.75(b), (c),
(d), (e), and (f) to improve clarity.
Section 4.76 Visual Acuity
We proposed to delete Sec. 4.83, which stated that a person not
able to read at any one of the scheduled steps or distances, but able
to read at the ``next scheduled step or distance,'' is to be rated as
reading at this latter step or distance. A commenter noted that this
rule is vital for determining whether to select the higher or lower
evaluation and recommended that we retain Sec. 4.83. In our view, an
adjudicator could simply refer to 38 CFR 4.7 to determine the correct
evaluation. However, we will retain this instruction to promote
consistency of evaluations. We have included the following language in
Sec. 4.76(b) at Sec. 4.76(b)(4): ``To evaluate the impairment of
visual acuity where a claimant has a reported visual acuity that is
between two sequentially listed visual acuities, use the visual acuity
which permits the higher evaluation.''
We proposed that visual acuity would generally be evaluated on the
basis of corrected distance vision. One commenter suggested that
because VA policy is to rate on central acuity, not eccentric viewing,
we should revise the proposed language of Sec. 4.76(b)(1) to clarify
that even when a central scotoma is present, central visual acuity is
evaluated based upon best corrected distance vision with central
fixation. We agree that central visual acuity should be emphasized. To
assure consistency of evaluation and eliminate the variability that
could result if eccentric vision were tested, we have revised the
language of proposed Sec. 4.76(b)(1) according to the commenter's
suggestion. For the sake of consistency, we have also added ``central''
to Sec. 4.76(a) before ``uncorrected and corrected visual acuity''.
Another commenter asked how visual acuity is determined if central
fixation is not possible. Visual acuity can be determined in these
cases by optometrists and ophthalmologists, because they are routinely
trained in special methods and techniques that allow them to assess
visual acuity and/or function when there is loss of central fixation.
Thus, central visual acuity can still be used to rate visual
impairment, even if central fixation is impossible.
In Sec. 4.76(b)(1), we proposed to amend how we evaluate visual
acuity where there is a significant difference in the lens required to
correct distance vision in the poorer eye compared to the lens required
to correct distance vision in the better eye. We proposed to evaluate
the visual acuity of the poorer eye using either its uncorrected visual
acuity or its visual acuity as corrected by a lens that does not differ
by more than three diopters from the lens needed for correction of the
other eye, whichever results in better combined visual acuity. This
provision reduced the diopter difference required for application of
this provision from the current requirement of more than four diopters
to a requirement of more than three diopters. We proposed to reduce the
diopter difference because at more than three diopters there is a
significant possibility that a claimant will have visual difficulties.
However, we have learned that even reducing the diopter difference
required for application of this provision from more than four diopters
to more than three diopters may still not assure that the individual's
brain will be able to ``fuse'' the two differently sized images. The
inability to do so results in an intolerable optical correction from
clinically significant aniseikonia (where the ocular image of an object
as seen by one eye differs in size and shape from that seen by the
other).
Therefore, we have decided to remove the language ``by a lens that
does not
[[Page 66546]]
differ by more than three diopters from the lens needed for correction
of the other eye.'' By permitting evaluation based on either
uncorrected vision or corrected vision without specifying the
refractive power of the lens, we can accommodate both individuals who
do experience visual difficulty when wearing such different lenses and
individuals who do not experience visual difficulty.
Further, we have added to Sec. 4.76(b)(1) language stating, ``and
either the poorer eye or both eyes are service connected'' to emphasize
VA's authority to service connect unilateral visual impairment. This
additional language clarifies that VA evaluators must apply this
provision whether disability of either only one eye (the poorer eye) or
both eyes is service-connected.
We made nonsubstantive revisions to proposed Sec. 4.76(a), (b)(1),
(b)(2) and (b)(3) to improve clarity.
Section 4.76a Computation of Average Concentric Contraction of Visual
Fields
We proposed to remove Sec. 4.76a because directions for evaluating
visual fields were revised and moved to Sec. 4.77. The proposed rule
did not make it clear whether or not Table III and Figure 1, which are
part of Sec. 4.76a, were to be retained. Table III lists the normal
degrees of the visual field at the eight principal meridians and also
gives an example of computing concentric contraction of abnormal visual
fields. One commenter suggested that we retain the example of computing
visual fields because it is useful for understanding the material on
average concentric contraction. We agree, and although we have deleted
from Sec. 4.76a the text preceding Table III, we have retained Table
III (including the example) and Figure 1 in the final rule.
Section 4.77 Visual Fields
Proposed Sec. 4.77(a) stated that to be adequate for VA purposes,
examinations of visual fields must be conducted using a Goldmann
kinetic perimeter or equivalent kinetic method, using a standard target
size and luminance (Goldmann's equivalent (III/4e)). It required that
at least 16 meridians 221/2 degrees apart be charted for each eye.
Table III listed the normal extent of the visual fields (in degrees) at
the 8 principal meridians (45 degrees apart). It also stated that the
examination must be supplemented by the use of a tangent screen when
the examiner indicates it is necessary.
The preamble to the proposed rule also stated that until there are
reliable standards for comparing the results from static and kinetic
perimetry, we propose to retain the requirement for the use of Goldmann
kinetic perimetry, which is more reliable than the alternatives. One
commenter suggested that VA's disability examination worksheet for the
eye also specify the use of a Goldmann kinetic perimeter or equivalent
kinetic examination method.
After the proposed rule was published, software programs for
automated perimetry were developed that completely simulate results
from Goldmann perimetry and can be charted on standard Goldmann charts.
The Compensation and Pension Service, after consultation with the
Veterans Health Administration's Chiefs of Ophthalmology and Optometry,
sent a letter (FL06-21) on November 8, 2006, to the Veterans Benefits
Administration regional offices stating that Humphrey Model 750,
Octopus Model 101, and later versions of these perimetric devices with
simulated kinetic Goldmann testing capability are acceptable devices
for determining the extent of visual field loss for compensation and
pension eye rating examinations.
Therefore, we have changed proposed Sec. 4.77(a) to indicate that
examiners must assess visual fields using either Goldmann kinetic
perimetry or automated perimetry using Humphrey Model 750, Octopus
Model 101, or later versions of these perimetric devices with simulated
kinetic Goldmann testing capability. We also clarified the directions
about the Goldmann equivalent that must be used for phakic (normal),
aphakic, and pseudophakic individuals. The content of the disability
examination worksheets is beyond the scope of this rulemaking, and we
make no change based on the comment about the worksheet.
We proposed to evaluate visual fields by using a Goldmann kinetic
perimeter or equivalent kinetic method, using a standard target size
and luminance (Goldmann's equivalent (III/4e)). That Goldmann
equivalent is useful for evaluating visual fields except in certain
cases where a larger equivalent size is needed. We have therefore
clarified the use of Goldmann equivalents in the final rule by revising
proposed Sec. 4.77(a) to state that, for phakic (normal) individuals,
as well as for pseudophakic or aphakic individuals who are well adapted
to intraocular lens implant or contact lens correction, visual field
examinations must be conducted using a standard target size and
luminance, which is Goldmann's equivalent III/4e. For aphakic
individuals not well adapted to contact lens correction or pseudophakic
individuals not well adapted to intraocular lens implant, visual field
examinations must be conducted using Goldmann's equivalent IV/4e.
Proposed Sec. 4.77(a) stated that ``[a]t least two recordings of
visual fields must be made'' for purposes of VA's disability
evaluations. We have learned from vision specialists that this is not
necessary and is not standard procedure, since the visual field outline
is determined by testing multiple objects along each meridian.
Therefore, we have removed the language requiring ``two recordings'' as
unnecessary. In conjunction with this change, we have also removed the
proposed statement that the confirmed visual fields must be made a part
of the examination report. Instead, we have stated in Sec. 4.77(a)
that in all cases, the results of visual field examinations must be
recorded on a standard Goldmann chart. We additionally require that the
Goldmann chart be included with the examination report.
Proposed Sec. 4.77(a) also said that the examination must be
supplemented by the use of a tangent screen when the examiner indicates
it is necessary. We have determined that a 30-degree threshold visual
field with the Goldmann III stimulus size could be used in lieu of a
tangent screen. This test provides information similar to the tangent
screen. For this reason, the final rule provides that adjudicators must
consider either of these two tests when additional testing of visual
fields becomes necessary, and requires that the examination report
include either the tracing of the tangent screen or the tracing of the
30-degree threshold visual field.
We made further nonsubstantive revisions to proposed Sec. 4.77(a),
(b), and (c) to improve clarity.
Section 4.78 Muscle Function
In proposed Sec. 4.78(b)(1), we provided guidance concerning the
evaluation of diplopia, and proposed that adjudicators assign an
evaluation for diplopia for only one eye. Further, we proposed that
where a claimant has both diplopia and decreased visual acuity or a
visual field defect, the corrected visual acuity for the poorer eye (or
the affected eye, if only one eye is service-connected) is deemed to
be, depending on the severity of the diplopia, between one and three
steps poorer, provided that the adjusted level of corrected visual
acuity does not exceed 5/200. Using the adjusted visual acuity for the
poorer eye (or the affected eye) and the corrected visual acuity for
the better eye, we proposed that the claimant's visual impairment be
evaluated under diagnostic codes 6064 through 6066.
[[Page 66547]]
Proposed diagnostic code 6064 refers to light perception only (LPO),
which exceeds a visual acuity level of 5/200. Hence, an evaluation
under diagnostic code 6064 is not permitted under Sec. 4.78(b).
Therefore, in Sec. 4.78(b)(1) we have omitted reference to diagnostic
code 6064.
We proposed not to retain in Sec. 4.78(b)(1) the rule from former
Sec. 4.77 (Examination of muscle function) which stated that
``[d]iplopia which is only occasional or correctable is not considered
a disability,'' since it pertains to the issue of service connection
rather than evaluation. Section 4.78(b)(1) addresses evaluation of
muscle function rather than service connection. One commenter stated
that this rule provides useful guidance to adjudicators considering
claims for service connection for diplopia. In response to this
comment, and because disease of or injury to one or more extraocular
eye muscles may cause diplopia which is occasional or correctable,
rather than including this language in Sec. 4.78(b)(1), we have added
a note under diagnostic code 6090 (diplopia) stating that in accordance
with 38 CFR 4.31, diplopia that is occasional or that is correctable
with spectacles is evaluated at 0 percent. This would clarify how to
evaluate diplopia with these characteristics.
In order to remove any doubt about the difference between Sec.
4.78(b)(2), which explains how to evaluate diplopia that is present in
more than one quadrant or range of degrees, and Sec. 4.78(b)(3), which
explains how to evaluate diplopia that exists in two separate areas of
the same eye, we have changed the language of Sec. 4.78(b)(2) from
``[w]hen diplopia is present in more than one quadrant,'' as proposed,
to ``[w]hen diplopia extends beyond more than one quadrant''. This is
similar to the language in the current rating schedule and will ensure
a clear distinction between these provisions.
We made nonsubstantive revisions to proposed Sec. 4.78 (a) and (b)
to improve clarity.
Section 4.79 Schedule of Ratings--Eye
We proposed to evaluate angle-closure glaucoma (diagnostic code
6012), which often presents as a red, painful eye, sometimes
accompanied by nausea and vomiting, either on the basis of visual
impairment or on the basis of incapacitating episodes, whichever
results in a higher evaluation. We proposed to evaluate open-angle
glaucoma (diagnostic code 6013), which generally presents as painless,
chronic, progressive loss of vision, solely on the basis of visual
impairment because open-angle glaucoma is unlikely to result in
incapacitating episodes.
One commenter questioned why angle-closure glaucoma based on
incapacitating episodes does not include a 10-percent evaluation for
incapacitating episodes of at least 1 week, but less than 2 weeks total
duration per year, when diagnostic codes 6000 through 6009 provide for
such an evaluation. Under the proposed rule, a minimum evaluation of 10
percent would be assigned for angle-closure glaucoma if continuous
medication is required. In our view, virtually all claimants with
symptomatic angle-closure glaucoma would require continuous medication,
which would entitle them to a minimum 10-percent evaluation. Therefore,
we did not propose a 10-percent evaluation based on incapacitating
episodes. We make no change based upon this comment.
One commenter suggested that we evaluate both angle-closure and
open-angle glaucoma on the basis of visual field loss or central visual
acuity impairment, whichever results in a higher evaluation. Section
4.75(a) states that the evaluation of visual impairment is based on
impairment of visual acuity (excluding developmental errors of
refraction), visual field, and muscle function. All three elements of
visual impairment may be present in glaucoma, although visual field
loss is most common. Not only would the commenter's suggestion limit
the rating possibilities to two of the three elements of visual
impairment, it also would not allow for evaluation of angle-closure
glaucoma based on incapacitating episodes. Section 4.75(b) states that
eye examinations must be conducted by a licensed optometrist or
ophthalmologist, and such specialists are unlikely to overlook a visual
field defect or any other type of visual impairment in an individual
with glaucoma. In our judgment, allowing evaluation to be based on any
of the three elements of visual impairment or on incapacitating
episodes is a fair way to assess glaucoma and to assure that the
veteran is evaluated based on the disabling effects that provide the
higher benefit. We have therefore not adopted the commenter's
suggestion.
We proposed that certain eye disabilities be evaluated either on
visual impairment or on incapacitating episodes, whichever results in a
higher evaluation. We proposed to define an incapacitating episode as a
period of acute symptoms severe enough to require bed rest and
treatment by a physician or other healthcare provider.
One commenter suggested that the rating formula based on
incapacitating episodes--60 percent if there are incapacitating
episodes of at least 6 weeks total duration per year, 40 percent if
there are incapacitating episodes of at least 4 weeks, but less than 6
weeks, total duration per year, etc.--is miserly because a veteran will
be compensated only for visual impairment or periods of incapacitation,
but not both, and with less than bedrest, the veteran receives nothing.
In most eye diseases, visual impairment will be the major problem
and therefore the more common basis of evaluation. With modern medical
and surgical treatment, few patients require bedrest of any duration
for eye disease. However, an evaluation based on incapacitating
episodes might be higher in those few cases in which bedrest might be
required, e.g., angle-closure glaucoma with severe pain, nausea, and
vomiting. If bedrest is not required, evaluation is based on visual
impairment. The evaluations based on visual impairment and those based
on incapacitating episodes are both meant to account for the average
occupational impairment. Providing alternative criteria allows the
rater to evaluate using the set of criteria more favorable to the
veteran.
The same commenter asked why there is a maximum evaluation of 60
percent for incapacitating episodes.
As stated above, with modern medical and surgical treatment, very
few, if any, veterans will experience incapacitating episodes of more
than 6 weeks total duration per year due to eye disease. However, for
any who do, 38 CFR 4.16(a), which provides for a total evaluation based
on individual unemployability, and 38 CFR 3.321(b)(1), which provides
for extra-schedular evaluations in cases where an evaluation is
inadequate because the condition presents such an unusual disability
picture that applying the regular schedular standards would be
impractical, provide reasonable alternatives for assigning an
evaluation greater than 60 percent. In our judgment, the range of
evaluations we have provided based on incapacitating episodes of eye
disease will adequately compensate veterans, and a 100-percent
evaluation level based on incapacitating episodes is not warranted.
Conditions evaluated on the basis of incapacitating episodes are
entitled to a 60-percent evaluation when the claimant has experienced
at least 6 weeks of incapacitating episodes over the preceding 12
months. One commenter suggested that, in some cases, an adjudicator
would not be able
[[Page 66548]]
to assign the maximum 60-percent evaluation until after the passage of
an entire year, and felt that evaluations based upon incapacitating
episodes should be retroactive to the date of the first incapacitating
episode, regardless of when it occurred.
By statute (38 U.S.C. 5110(a)), except as otherwise provided, the
effective date of an award of compensation will be fixed in accordance
with the facts but not before the date of receipt of the claim.
Furthermore, an award of increased compensation will be effective the
earliest date it is ascertainable that an increase in disability
occurred if application is received within 1 year of that date. 38
U.S.C. 5110(b)(2). Otherwise, the effective date is the date the claim
was received. 38 CFR 3.400(o)(2). We are aware of no special provisions
that would apply to the evaluation of incapacitating episodes of the
eye. Under governing law, entitlement to a 60-percent rating would not
arise until 6 weeks of incapacitating episodes have taken place, and
the effective date could not be established before then. Once the
claimant has experienced 6 weeks of incapacitating episodes, the 60-
percent evaluation will be assigned, even if the evaluation occurs
within several months of the initial incapacitating episode. In cases
where it takes the entire 12-month period for a claimant to experience
6 weeks of incapacitating episodes, the 60-percent evaluation will be
assigned at that time. However, during the interim, a rating
corresponding to the total duration of incapacitating episodes already
experienced may be assigned. That is to say, once 1 week of
incapacitating episodes is experienced, a 10-percent rating may be
assigned; once 2 weeks of incapacitating episodes are experienced, a
20-percent rating may be assigned; etc. We make no change based on this
comment.
The proposed criteria based on incapacitating episodes referred to
the total duration of incapacitating episodes ``per year''. To clarify
that we mean during the preceding 12-month period, and not the calendar
year, we have changed this language to refer to incapacitating episodes
``during the past 12 months''. This language is consistent with other
provisions in the rating schedule that evaluate incapacitating episodes
(e.g., diagnostic code 5243, intervertebral disc syndrome, and
diagnostic code 7354, hepatitis C). We are also adding language to
indicate that bed rest must be prescribed by a physician to the notes
following diagnostic codes 6000 through 6009 and diagnostic code 6012
of the rating schedule. This clarifies VA's intent in the proposed rule
and makes a nonsubstantive change for clarification purposes.
One commenter asked for clarification as to whether the absence of
light perception is to be evaluated as anatomical loss of one eye
(diagnostic code 6063) or light perception only (diagnostic code 6064).
Section 4.75(d) states that the evaluation for visual impairment of
one eye must not exceed 30-percent unless there is anatomical loss of
the eye. This is clear and straightforward and names no exceptions.
Therefore, in evaluating visual acuity of one eye, no light perception
is evaluated the same as light perception only. To avoid confusion, we
have revised the titles of diagnostic codes 6062 to ``No more than
light perception in both eyes'' and 6064 to ``No more than light
perception in one eye.''
As previously discussed under one of the comments about diplopia,
we have added a note to diagnostic code 6090 stating that occasional or
correctable diplopia will be evaluated as 0-percent disabling.
One commenter asked that we clarify whether the use of an eye patch
for diplopia warrants special monthly compensation (SMC) (see 38 CFR
3.350) for loss or loss of use of an eye. Since the eye is present when
an eye patch is used for diplopia, SMC for loss of an eye is not
warranted. Visual impairment due to diplopia is determined without the
eye patch, and it could be at any level of severity, so SMC for loss of
use of an eye is also not warranted. The fact that the eye is not being
used when it is patched does not necessarily mean it cannot be used,
which would be required for loss of use.
We use the word ``alternatively'' instead of the proposed
``otherwise'' in diagnostic code 6011 for clarity and add ``if this
would result in a higher evaluation'' for further guidance. We use
similar language in diagnostic code 6081 for the same purpose. We
additionally edited the proposed criteria for evaluating malignant
neoplasms of the eyeball (diagnostic code 6014) for the sake of
clarity.
VA appreciates the comments submitted in response to the proposed
rule. Based on the rationale stated in the proposed rule and in this
document, the proposed rule is adopted as final with the changes noted.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This final rule would have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a ``significant regulatory action,'' requiring review
by the Office of Management and Budget (OMB) unless OMB waives such
review, as any regulatory action that is likely to result in a rule
that may: (1) Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
The economic, interagency, budgetary, legal, and policy
implications of this final rule has been examined, and it has been
determined to be a significant regulatory action under the Executive
Order because it is likely to result in a rule that may raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule would not affect any small entities. Only VA
beneficiaries could be directly
[[Page 66549]]
affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is
exempt from the initial and final regulatory flexibility analysis
requirements of sections 603 and 604.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles are 64.104, Pension for Non-Service-Connected Disability for
Veterans, and 64.109, Veterans Compensation for Service-Connected
Disability.
List of Subjects in 38 CFR Part 4
Disability benefits, Pensions, Veterans.
Approved: August 6, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
0
For the reasons set out in the preamble, 38 CFR part 4, subpart B, is
amended as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
0
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155, unless otherwise noted.
Subpart B--Disability Ratings
0
2. Section 4.75 is revised to read as follows:
Sec. 4.75 General considerations for evaluating visual impairment.
(a) Visual impairment. The evaluation of visual impairment is based
on impairment of visual acuity (excluding developmental errors of
refraction), visual field, and muscle function.
(b) Examination for visual impairment. The examination must be
conducted by a licensed optometrist or by a licensed ophthalmologist.
The examiner must identify the disease, injury, or other pathologic
process responsible for any visual impairment found. 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. Unless medically
contraindicated, the fundus must be examined with the claimant's pupils
dilated.
(c) Service-connected visual impairment of only one eye. Subject to
the provisions of 38 CFR 3.383(a), if visual impairment of only one eye
is service-connected, the visual acuity of the other eye will be
considered to be 20/40 for purposes of evaluating the service-connected
visual impairment.
(d) Maximum evaluation for visual impairment of one eye. The
evaluation for visual impairment of one eye must not exceed 30 percent
unless there is anatomical loss of the eye. Combine the evaluation for
visual impairment of one eye with evaluations for other disabilities of
the same eye that are not based on visual impairment (e.g.,
disfigurement under diagnostic code 7800).
(e) Anatomical loss of one eye with inability to wear a prosthesis.
When the claimant has anatomical loss of one eye and is unable to wear
a prosthesis, increase the evaluation for visual acuity under
diagnostic code 6063 by 10 percent, but the maximum evaluation for
visual impairment of both eyes must not exceed 100 percent. A 10-
percent increase under this paragraph precludes an evaluation under
diagnostic code 7800 based on gross distortion or asymmetry of the eye
but not an evaluation under diagnostic code 7800 based on other
characteristics of disfigurement.
(f) Special monthly compensation. When evaluating visual
impairment, refer to 38 CFR 3.350 to determine whether the claimant may
be entitled to special monthly compensation. Footnotes in the schedule
indicate levels of visual impairment that potentially establish
entitlement to special monthly compensation; however, other levels of
visual impairment combined with disabilities of other body systems may
also establish entitlement.
(Authority: 38 U.S.C. 1114 and 1155)
0
3. Section 4.76 is revised to read as follows:
Sec. 4.76 Visual acuity.
(a) Examination of visual acuity. Examination of visual acuity must
include the central uncorrected and corrected visual acuity for
distance and near vision using Snellen's test type or its equivalent.
(b) Evaluation of visual acuity. (1) Evaluate central visual acuity
on the basis of corrected distance vision with central fixation, even
if a central scotoma is present. However, when the lens required to
correct distance vision in the poorer eye differs by more than three
diopters from the lens required to correct distance vision in the
better eye (and the difference is not due to congenital or
developmental refractive error), and either the poorer eye or both eyes
are service connected, evaluate the visual acuity of the poorer eye
using either its uncorrected or corrected visual acuity, whichever
results in better combined visual acuity.
(2) Provided that he or she customarily wears contact lenses,
evaluate the visual acuity of any individual affected by a corneal
disorder that results in severe irregular astigmatism that can be
improved more by contact lenses than by eyeglass lenses, as corrected
by contact lenses.
(3) In any case where the examiner reports that there is a
difference equal to two or more scheduled steps between near and
distance corrected vision, with the near vision being worse, the
examination report must include at least two recordings of near and
distance corrected vision and an explanation of the reason for the
difference. In these cases, evaluate based on corrected distance vision
adjusted to one step poorer than measured.
(4) To evaluate the impairment of visual acuity where a claimant
has a reported visual acuity that is between two sequentially listed
visual acuities, use the visual acuity which permits the higher
evaluation.
(Authority: 38 U.S.C. 1155)
0
4. In Sec. 4.76a, remove the introductory text, retain Table III--
Normal Visual Field Extent at 8 Principal Meridians, retain Figure 1.
Chart of visual field showing normal field right eye and abnormal
contraction visual field left eye and the text and table following
Figure 1, and add an authority citation at the end of the section to
read as follows.
Sec. 4.76a Computation of average concentric contraction of visual
fields.
* * * * *
(Authority: 38 U.S.C. 1155)
0
5. Section 4.77 is amended by:
0
a. Revising the section heading.
0
b. Removing the introductory text and adding, in its place, paragraphs
(a), (b), and (c).
0
c. Retaining Figure 2. Goldmann Perimeter Chart.
0
d. Adding an authority citation at the end of the section.
The additions read as follows:
Sec. 4.77 Visual fields.
(a) Examination of visual fields. Examiners must use either
Goldmann kinetic perimetry or automated perimetry using Humphrey Model
750, Octopus Model 101, or later versions of these perimetric devices
with simulated kinetic Goldmann testing capability. For phakic (normal)
individuals, as well as for pseudophakic or aphakic individuals who are
well adapted to intraocular lens implant or contact lens correction,
visual field examinations must be conducted using a standard target
size
[[Page 66550]]
and luminance, which is Goldmann's equivalent III/4e. For aphakic
individuals not well adapted to contact lens correction or pseudophakic
individuals not well adapted to intraocular lens implant, visual field
examinations must be conducted using Goldmann's equivalent IV/4e. In
all cases, the results must be recorded on a standard Goldmann chart
(see Figure 1), and the Goldmann chart must be included with the
examination report. The examiner must chart at least 16 meridians 22\1/
2\ degrees apart for each eye and indicate the Goldmann equivalent
used. See Table III for the normal extent (in degrees) of the visual
fields at the 8 principal meridians (45 degrees apart). When the
examiner indicates that additional testing is necessary to evaluate
visual fields, the additional testing must be conducted using either a
tangent screen or a 30-degree threshold visual field with the Goldmann
III stimulus size. The examination report must then include the tracing
of either the tangent screen or of the 30-degree threshold visual field
with the Goldmann III stimulus size.
(b) Evaluation of visual fields. Determine the average concentric
contraction of the visual field of each eye by measuring the remaining
visual field (in degrees) at each of eight principal meridians 45
degrees apart, adding them, and dividing the sum by eight.
(c) Combination of visual field defect and decreased visual acuity.
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 Sec. 4.25.
* * * * *
(Authority: 38 U.S.C. 1155)
0
6. Section 4.78 is revised to read as follows:
Sec. 4.78 Muscle function.
(a) Examination of muscle function. The examiner must use a
Goldmann perimeter chart that identifies the four major quadrants
(upward, downward, left and right lateral) and the central field (20
degrees or less) (see Figure 2). The examiner must chart the areas of
diplopia and include the plotted chart with the examination report.
(b) Evaluation of muscle function. (1) An evaluation for diplopia
will be assigned to only one eye. When a claimant has both diplopia and
decreased visual acuity or visual field defect, assign a level of
corrected visual acuity for the poorer eye (or the affected eye, if
disability of only one eye is service-connected) that is: one step
poorer than it would otherwise warrant if the evaluation for diplopia
under diagnostic code 6090 is 20/70 or 20/100; two steps poorer if the
evaluation under diagnostic code 6090 is 20/200 or 15/200; or three
steps poorer if the evaluation under diagnostic code 6090 is 5/200.
This adjusted level of corrected visual acuity, however, must not
exceed a level of 5/200. Use the adjusted visual acuity for the poorer
eye (or the affected eye, if disability of only one eye is service-
connected), and the corrected visual acuity for the better eye (or
visual acuity of 20/40 for the other eye, if only one eye is service-
connected) to determine the percentage evaluation for visual impairment
under diagnostic codes 6065 through 6066.
(2) When diplopia extends beyond more than one quadrant or range of
degrees, evaluate diplopia based on the quadrant and degree range that
provides the highest evaluation.
(3) When diplopia exists in two separate areas of the same eye,
increase the equivalent visual acuity under diagnostic code 6090 to the
next poorer level of visual acuity, not to exceed 5/200.
(Authority: 38 U.S.C. 1155)
0
7. Section 4.79 is revised to read as follows:
Sec. 4.79 Schedule of ratings--eye.
Diseases of the Eye
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
6000 Choroidopathy, including uveitis, iritis, cyclitis, and
choroiditis.
6001 Keratopathy.
6002 Scleritis.
6006 Retinopathy or maculopathy.
6007 Intraocular hemorrhage.
6008 Detachment of retina.
6009 Unhealed eye injury.
------------------------------------------------------------------------
General Rating Formula for Diagnostic Codes 6000 through 6009
------------------------------------------------------------------------
Evaluate on the basis of either visual impairment due to
the particular condition or on incapacitating episodes,
whichever results in a higher evaluation.
With incapacitating episodes having a total duration of 60
at least 6 weeks during the past 12 months..............
With incapacitating episodes having a total duration of 40
at least 4 weeks, but less than 6 weeks, during the past
12 months...............................................
With incapacitating episodes having a total duration of 20
at least 2 weeks, but less than 4 weeks, during the past
12 months...............................................
With incapacitating episodes having a total duration of 10
at least 1 week, but less than 2 weeks, during the past
12 months...............................................
Note: 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.
6010 Tuberculosis of eye:
Active................................................... 100
Inactive: Evaluate under Sec. 4.88c or Sec. 4.89 of
this part, whichever is appropriate.
6011 Retinal scars, atrophy, or irregularities:
Localized scars, atrophy, or irregularities of the 10
retina, unilateral or bilateral, that are centrally
located and that result in an irregular, duplicated,
enlarged, or diminished image...........................
Alternatively, evaluate based on visual impairment due to
retinal scars, atrophy, or irregularities, if this would
result in a higher evaluation.
6012 Angle-closure glaucoma:
Evaluate on the basis of either visual impairment due to
angle-closure glaucoma or incapacitating episodes,
whichever results in a higher evaluation.
With incapacitating episodes having a total duration of 60
at least 6 weeks during the past 12 months..............
[[Page 66551]]
With incapacitating episodes having a total duration of 40
at least 4 weeks, but less than 6 weeks, during the past
12 months...............................................
With incapacitating episodes having a total duration of 20
at least 2 weeks, but less than 4 weeks, during the past
12 months...............................................
Minimum evaluation if continuous medication is required.. 10
Note: 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.
6013 Open-angle glaucoma:
Evaluate based on visual impairment due to open-angle
glaucoma.
Minimum evaluation if continuous medication is required.. 10
6014 Malignant neoplasms (eyeball only):
Malignant neoplasm of the eyeball that requires therapy 100
that is comparable to that used for systemic
malignancies, i.e., systemic chemotherapy, X-ray therapy
more extensive than to the area of the eye, or surgery
more extensive than enucleation.........................
Note: Continue the 100-percent rating beyond the cessation of
any surgical, X-ray, antineoplastic chemotherapy or other
therapeutic procedure. Six months after discontinuance of
such treatment, the appropriate disability rating will be
determined by mandatory VA examination. Any change in
evaluation based upon that or any subsequent examination
will be subject to the provisions of Sec. 3.105(e) of this
chapter. If there has been no local recurrence or
metastasis, evaluate based on residuals.
Malignant neoplasm of the eyeball that does not require
therapy comparable to that for systemic malignancies:
Separately evaluate visual impairment and nonvisual
impairment, e.g., disfigurement (diagnostic code 7800),
and combine the evaluations.
6015 Benign neoplasms (of eyeball and adnexa):
Separately evaluate visual impairment and nonvisual
impairment, e.g., disfigurement (diagnostic code 7800),
and combine the evaluations.
6016 Nystagmus, central...................................... 10
6017 Trachomatous conjunctivitis:
Active: Evaluate based on visual impairment, minimum..... 30
Inactive: Evaluate based on residuals, such as visual
impairment and disfigurement (diagnostic code 7800).
6018 Chronic conjunctivitis (nontrachomatous):
Active (with objective findings, such as red, thick 10
conjunctivae, mucous secretion, etc.)...................
Inactive: Evaluate based on residuals, such as visual
impairment and disfigurement (diagnostic code 7800).
6019 Ptosis, unilateral or bilateral:
Evaluate based on visual impairment or, in the absence of
visual impairment, on disfigurement (diagnostic code
7800).
6020 Ectropion:
Bilateral................................................ 20
Unilateral............................................... 10
6021 Entropion:
Bilateral................................................ 20
Unilateral............................................... 10
6022 Lagophthalmos:
Bilateral................................................ 20
Unilateral............................................... 10
6023 Loss of eyebrows, complete, unilateral or bilateral..... 10
6024 Loss of eyelashes, complete, unilateral or bilateral.... 10
6025 Disorders of the lacrimal apparatus (epiphora,
dacryocystitis, etc.):
Bilateral................................................ 20
Unilateral............................................... 10
6026 Optic neuropathy:
Evaluate based on visual impairment.
6027 Cataract of any type:
Preoperative:
Evaluate based on visual impairment.
Postoperative:
If a replacement lens is present (pseudophakia), evaluate
based on visual impairment. If there is no replacement
lens, evaluate based on aphakia.
6029 Aphakia or dislocation of crystalline lens:
Evaluate based on visual impairment, and elevate the
resulting level of visual impairment one step.
Minimum (unilateral or bilateral)........................ 30
6030 Paralysis of accommodation (due to neuropathy of the 20
Oculomotor Nerve (cranial nerve III)).
6032 Loss of eyelids, partial or complete:
Separately evaluate both visual impairment due to eyelid
loss and nonvisual impairment, e.g., disfigurement
(diagnostic code 7800), and combine the evaluations.
6034 Pterygium:
Evaluate based on visual impairment, disfigurement
(diagnostic code 7800), conjunctivitis (diagnostic code
6018), etc., depending on the particular findings.
6035 Keratoconus:
Evaluate based on impairment of visual acuity.
6036 Status post corneal transplant:
Evaluate based on visual impairment.
Minimum, if there is pain, photophobia, and glare 10
sensitivity.............................................
6037 Pinguecula:
Evaluate based on disfigurement (diagnostic code 7800).
------------------------------------------------------------------------
[[Page 66552]]
Impairment of Central Visual Acuity
------------------------------------------------------------------------
6061 Anatomical loss of both eyes \1\........................ 100
6062 No more than light perception in both eyes \1\.......... 100
6063 Anatomical loss of one eye: \1\
In the other eye 5/200 (1.5/60).......................... 100
In the other eye 10/200 (3/60)........................... 90
In the other eye 15/200 (4.5/60)......................... 80
In the other eye 20/200 (6/60)........................... 70
In the other eye 20/100 (6/30)........................... 60
In the other eye 20/70 (6/21)............................ 60
In the other eye 20/50 (6/15)............................ 50
In the other eye 20/40 (6/12)............................ 40
6064 No more than light perception in one eye: \1\
In the other eye 5/200 (1.5/60).......................... 100
In the other eye 10/200 (3/60)........................... 90
In the other eye 15/200 (4.5/60)......................... 80
In the other eye 20/200 (6/60)........................... 70
In the other eye 20/100 (6/30)........................... 60
In the other eye 20/70 (6/21)............................ 50
In the other eye 20/50 (6/15)............................ 40
In the other eye 20/40 (6/12)............................ 30
6065 Vision in one eye 5/200 (1.5/60):
In the other eye 5/200 (1.5/60).......................... \1\100
In the other eye 10/200 (3/60)........................... 90
In the other eye 15/200 (4.5/60)......................... 80
In the other eye 20/200 (6/60)........................... 70
In the other eye 20/100 (6/30)........................... 60
In the other eye 20/70 (6/21)............................ 50
In the other eye 20/50 (6/15)............................ 40
In the other eye 20/40 (6/12)............................ 30
6066 Visual acuity in one eye 10/200 (3/60) or better:
Vision in one eye 10/200 (3/60):
In the other eye 10/200 (3/60)........................... 90
In the other eye 15/200 (4.5/60)......................... 80
In the other eye 20/200 (6/60)........................... 70
In the other eye 20/100 (6/30)........................... 60
In the other eye 20/70 (6/21)............................ 50
In the other eye 20/50 (6/15)............................ 40
In the other eye 20/40 (6/12)............................ 30
Vision in one eye 15/200 (4.5/60):
In the other eye 15/200 (4.5/60)......................... 80
In the other eye 20/200 (6/60)........................... 70
In the other eye 20/100 (6/30)........................... 60
In the other eye 20/70 (6/21)............................ 40
In the other eye 20/50 (6/15)............................ 30
In the other eye 20/40 (6/12)............................ 20
Vision in one eye 20/200 (6/60):
In the other eye 20/200 (6/60)........................... 70
In the other eye 20/100 (6/30)........................... 60
In the other eye 20/70 (6/21)............................ 40
In the other eye 20/50 (6/15)............................ 30
In the other eye 20/40 (6/12)............................ 20
Vision in one eye 20/100 (6/30):
In the other eye 20/100 (6/30)........................... 50
In the other eye 20/70 (6/21)............................ 30
In the other eye 20/50 (6/15)............................ 20
In the other eye 20/40 (6/12)............................ 10
Vision in one eye 20/70 (6/21):
In the other eye 20/70 (6/21)............................ 30
In the other eye 20/50 (6/15)............................ 20
In the other eye 20/40 (6/12)............................ 10
Vision in one eye 20/50 (6/15):
In the other eye 20/50 (6/15)............................ 10
In the other eye 20/40 (6/12)............................ 10
Vision in one eye 20/40 (6/12):
In the other eye 20/40 (6/12)............................ 0
------------------------------------------------------------------------
\1\ Review for entitlement to special monthly compensation under 38 CFR
3.350.
[[Page 66553]]
Ratings for Impairment of Visual Fields
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
6080 Visual field defects:
Homonymous hemianopsia................................... 30
Loss of temporal half of visual field:
Bilateral................................................ 30
Unilateral............................................... 10
Or evaluate each affected eye as 20/70 (6/21)............
Loss of nasal half of visual field:
Bilateral................................................ 10
Unilateral............................................... 10
Or evaluate each affected eye as 20/50 (6/15)............
Loss of inferior half of visual field:
Bilateral................................................ 30
Unilateral............................................... 10
Or evaluate each affected eye as 20/70 (6/21)............
Loss of superior half of visual field:
Bilateral................................................ 10
Unilateral............................................... 10
Or evaluate each affected eye as 20/50 (6/15)............
Concentric contraction of visual field:
With remaining field of 5 degrees: \1\
Bilateral................................................ 100
Unilateral............................................... 30
Or evaluate each affected eye as 5/200 (1.5/60)..........
With remaining field of 6 to 15 degrees:
Bilateral................................................ 70
Unilateral............................................... 20
Or evaluate each affected eye as 20/200 (6/60)...........
With remaining field of 16 to 30 degrees:
Bilateral................................................ 50
Unilateral............................................... 10
Or evaluate each affected eye as 20/100 (6/30)...........
With remaining field of 31 to 45 degrees:
Bilateral................................................ 30
Unilateral............................................... 10
Or evaluate each affected eye as 20/70 (6/21)............
With remaining field of 46 to 60 degrees:
Bilateral................................................ 10
Unilateral............................................... 10
Or evaluate each affected eye as 20/50 (6/15)............
6081 Scotoma, unilateral:
Minimum, with scotoma affecting at least one-quarter of 10
the visual field (quadrantanopsia) or with centrally
located scotoma of any size.............................
Alternatively, evaluate based on visual impairment due to
scotoma, if that would result in a higher evaluation....
------------------------------------------------------------------------
\1\ Review for entitlement to special monthly compensation under 38 CFR
3.350.
Ratings for Impairment of Muscle Function
------------------------------------------------------------------------
Equivalent
Degree of diplopia visual acuity
------------------------------------------------------------------------
6090 Diplopia (double vision):
(a) Central 20 degrees........................... 5/200 (1.5/60)
(b) 21 degrees to 30 degrees
(1) Down..................................... 15/200 (4.5/60)
(2) Lateral.................................. 20/100 (6/30)
(3) Up....................................... 20/70 (6/21)
(c) 31 degrees to 40 degrees
(1) Down..................................... 20/200 (6/60)
(2) Lateral.................................. 20/70 (6/21)
(3) Up....................................... 20/40 (6/12)
Note: In accordance with 38 CFR 4.31, diplopia that
is occasional or that is correctable with spectacles
is evaluated at 0 percent.
6091 Symblepharon:
Evaluate based on visual impairment,
lagophthalmos (diagnostic code 6022),
disfigurement (diagnostic code 7800), etc.,
depending on the particular findings.
------------------------------------------------------------------------
[[Page 66554]]
(Authority: 38 U.S.C. 1155)
Sec. Sec. 4.80, 4.83, and 4.84 [Removed and Reserved]
0
8. Sections 4.80, 4.83, and 4.84 are removed and reserved.
Sec. Sec. 4.83a and 4.84a [Removed]
0
9. Sections 4.83a and 4.84a are removed.
[FR Doc. E8-26304 Filed 11-7-08; 8:45 am]
BILLING CODE 8320-01-P