[blindlaw] Fwd: [Blindvet-talk] Revised rule on visual disorders of the eye
David Andrews
dandrews at visi.com
Tue Nov 11 12:16:26 UTC 2008
>
>All Vets,
>Notice from Jim McCarthy in Baltimore.
>Read on Please.
>Dwight
>
>
>
>____________________________________
> From: JMcCarthy at nfb.org
>To: MisterAdvocate at aol.com
>Sent: 11/10/2008 2:36:19 P.M. Eastern Standard Time
>Subj: Revised rule on visual disorders of the eye
>
>
>Dwight,
>This is the veteran's revised rule on disabilities of the eye. It has
>been under consideration from 1998 and perhaps some here were aware of
>that, but because there was no discussion of the rule, I was not. The
>rule becomes final after December 10 and here it is as published in the
>federal Register.
>Jim McCarthy
>
>FR Doc E8-26304[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]
>
>=======================================================================
>-----------------------------------------------------------------------
>
>DEPARTMENT OF VETERANS AFFAIRS
>
>38 CFR Part 4
>
>RIN 2900-AH43
>
>
>Schedule for Rating Disabilities; Eye
>
>AGENCY: Department of Veterans Affairs.
>
>ACTION: Final rule.
>
>-----------------------------------------------------------------------
>
>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
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