Citation Nr: 1315340	
Decision Date: 05/09/13    Archive Date: 05/15/13

DOCKET NO.  08-18 148	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for bilateral astigmatism.

2.  Entitlement to an initial rating greater than 30 percent for diplopia of the left eye due to left superior oblique muscle palsy, including on an extraschedular basis.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from November 1990 to September 2002 in the U.S. Marine Corps and from February 2004 to April 2005, August 2005 to August 2006, and January to September 2009 in the U.S. Air Force Reserve, including in support of Operation Iraqi Freedom.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted, in pertinent part, the Veteran's claim of service connection for diplopia of the left eye due to left superior oblique muscle palsy (which was characterized as diplopia due to left superior oblique muscle palsy), assigning a 30 percent rating effective August 20, 2006, and denied the Veteran's claim of service connection for bilateral astigmatism.  Having reviewed the evidence of record, the Board finds that the issues on appeal are characterized more appropriately as stated on the title page of this decision.

The Veteran's claims file was transferred permanently to the RO in Roanoke, Virginia, in July 2007 because the Veteran moved to the jurisdiction of that RO.  Thus, the RO in Roanoke, Virginia, has jurisdiction in this appeal.

In April 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board directed that the RO/AMC attempt to obtain the Veteran's service treatment records from his last period of active service in 2009 or, if these records were not available or could not be obtained, prepare a formal finding documenting this fact and include it in the claims file.  After VA's Records Management Center notified the RO/AMC in May 2011 that the requested service treatment records were not available, the RO prepared a formal finding concerning their unavailability and included it in the claims file.  The Board also directed the RO/AMC to ask the Veteran to provide any copies of his service treatment records that were in his possession.  After being contacted by the RO/AMC, the Veteran essentially informed VA that he had no additional records to submit in support of his claims.  The Board finally directed the RO/AMC to schedule the Veteran for an updated VA examination to determine the nature and etiology of his bilateral astigmatism; this examination occurred in June 2011.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) recently held that a TDIU claim cannot be considered separate and apart from an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability.  The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability.  

The record in this case indicates that the Veteran has asserted that he is not employable by reason of his service-connected diplopia of the left eye and vertigo.  The Veteran's service representative specifically contended in an April 2013 Informal Hearing Presentation (IHP) that the Veteran was entitled to a TDIU on an extraschedular basis.  See 38 C.F.R. § 4.16(b) (2012).  The representative also waived RO jurisdiction in the first instance over evidence and argument attached to the April 2013 IHP.  See 38 C.F.R. §§ 19.37(b), 20.1304(c) (2012).  Having reviewed the record evidence, and as explained below, the Board finds that the criteria for referral to the Director, Compensation & Pension (C&P) Service, for consideration of entitlement to a TDIU on an extraschedular basis have been met.  38 C.F.R. § 4.16(b).  Thus, the service representative's argument concerning extraschedular entitlement to a TDIU does not need to be addressed by the Board.



FINDINGS OF FACT

1.  The record evidence indicates that the Veteran's bilateral astigmatism is congenital in origin and is not considered a disability for VA purposes; it also was not aggravated by a superimposed disease or injury during service.

2.  Service connection is in effect for visual impairment (diplopia) only in the left eye; thus, the visual acuity of the Veteran's right eye for VA purposes is 20/40.

3.  The record evidence indicates that the Veteran's visual acuity in the left eye is, at worst, 5/200.

4.  The record evidence demonstrates that the Veteran's service-connected diplopia of the left eye is manifested by continuing complaints of severe vision problems bilaterally, residual diplopia despite corrective surgery, esophoria, and hyperphoria.

5.  The record evidence indicates that the Veteran's service-connected diplopia of the left eye markedly interfered with his employment.

6.  Service connection is in effect for diplopia due to left superior oblique muscle palsy, evaluated as 30 percent disabling effective August 20, 2006, vertigo, evaluated as 30 percent disabling effective August 20, 2006, tinnitus, evaluated as 10 percent disabling effective August 20, 2006, multiple scars, each evaluated as zero percent disabling effective August 20, 2006, and for blisters on both feet, evaluated as zero percent disabling effective August 20, 2006.

7.  The Veteran does not meet the schedular criteria for a TDIU.

8.  There is plausible evidence of record that the Veteran is unable to secure and follow a substantially gainful occupation solely as a result of his service-connected disabilities; thus, the Veteran's claim for a TDIU is eligible for extra-schedular consideration.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral astigmatism have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1132, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 4.9 (2012); VAOPGCPREC 82-90 (July 18, 1990).  

2.  The criteria for an initial schedular rating greater than 30 percent for diplopia of the left eye as due to left superior oblique muscle palsy have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.79, 4.83a, Table V, 4.84a, Diagnostic Codes (DC's) 6074, 6092 (effective prior to December 10, 2008).

3.  The criteria for referral to the Director, Compensation & Pension (C&P) Service, for consideration of entitlement to an initial rating greater than 30 percent for diplopia of the left eye due to left superior oblique muscle palsy on an extraschedular basis have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.79, 4.83a, Table V, 4.84a, DC's 6074, 6092 (effective prior to December 10, 2008).  

4.  The schedular criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.16(a) (2012).

5.  The criteria for referral to the Director, C&P Service, for consideration of entitlement to a TDIU on an extraschedular basis have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.16(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

In letters issued in December 2006, October 2007, and in December 2008, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters informed the Veteran to submit medical evidence relating bilateral astigmatism to active service, evidence showing that his service-connected diplopia of the left eye had worsened, and noted other types of evidence the Veteran could submit in support of his claims.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Additional notice of the five elements of a service-connection claim was provided in all of these VCAA notice letters, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran's higher initial rating claim for diplopia is a "downstream" element of the RO's grant of service connection for this disability in the currently appealed rating decision.  For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  As noted, VA has notified the Veteran of the information and evidence needed to substantiate and complete this claim.

The evidence does not support granting service connection for bilateral astigmatism or assigning an initial schedular rating greater than 30 percent for service-connected diplopia of the left eye.  By contrast, the evidence supports referring both the Veteran's higher initial rating claim for diplopia of the left eye and his TDIU claim to the Director, C&P Service, for extraschedular consideration.  Because the Veteran was fully informed of the evidence needed to substantiate these claims, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Here, the December 2006 VCAA notice letter was issued prior to the currently appealed rating decision issued in May 2007; thus, this notice was timely.  Because the Veteran's service connection claim for bilateral astigmatism is being denied in this decision, any question as to the appropriate disability rating or effective date is moot.  Although his higher initial rating claim for diplopia and his TDIU claim are being denied on a schedular basis, each of these claims is being referred to the Director, C&P Service, for extraschedular consideration; thus, any question as to the appropriate disability rating or effective date is moot.  See Dingess, 19 Vet. App. at 473.  And any defect in the notices provided to the Veteran and his service representative has not affected the fairness of the adjudication.  See Mayfield, 444 F.3d at 1328.

The Board is aware of the decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) in which the Court held that, for an increased-compensation claim, section § 5103(a) requires, at a minimum, VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life.  Relying on the informal guidance from VA's Office of General Counsel (OGC) and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that Vazquez-Flores is not applicable.  According to OGC, because this claim concerns an appeal from an initial rating decision, VCAA notice obligations are satisfied fully once service connection has been granted.  Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely NOD with respect to the initial rating or effective date assigned following the grant of service connection.

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's Virtual VA claims file has been reviewed.  The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required.

In May 2011, VA's Records Management Center (RMC) notified the RO that the Veteran's service treatment records for his last period of service between January and September 2009 ("2009 service treatment records") could not be located.  In cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case.  O'Hare v. Derwinski, 1 Vet. App. 365 (1991).  VA also must provide an explanation to the Veteran regarding VA's inability to obtain his or her service treatment records.  Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.  Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000).  After being notified by the RO that his 2009 service treatment records had been requested from the RMC, the Veteran responded later in May 2011 by stating that "there is no new data in my military service record, as I have not had a physical at a military treatment facility since filing my VA claim."  (Emphasis in original.)  The RO subsequently contacted the Veteran in November 2011 and asked him to provide any copies of his 2009 service treatment records that were in his possession; there is no record of a response.  In a February 2012 memorandum, the RO formally determined that the Veteran's 2009 service treatment records were not available for review and further attempts to obtain them would be futile.  The Board agrees.

The Veteran also has been provided with VA examinations which address the contended causal relationship between bilateral astigmatism and active service and the current nature and severity of his service-connected diplopia of the left eye.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations.  Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision.  See also 38 C.F.R. §§ 3.326, 3.327, 4.2.

Service Connection Claim

The Veteran contends that he incurred bilateral astigmatism during active service.  He alternatively contends that his bilateral astigmatism was aggravated by a superimposed disease or injury experienced during service.

Law and Regulations

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claim in-service disease or injury and the present disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999).

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  See Savage, 10 Vet. App. at 495-498.

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a).  Because bilateral astigmatism is not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim.

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

Factual Background

The Veteran's available service treatment records show that, at his enlistment physical examination in October 1990, he denied any history of eye trouble.  Clinical evaluation of his eyes was normal.  His distant vision was 20/20 bilaterally.  His near vision was 20/20 correctable to 20/20 bilaterally.

On periodic physical examination in January 1992, the Veteran denied any history of eye trouble.  He also reported that he was not aware that his "vision has been worse than 20/20."  Clinical evaluation of the Veteran's eyes was normal.  His distant vision was 20/20 correctable to 20/20-0 in both eyes.  He had a full field of vision.  A manifest refractive error was noted in the summary of defects and diagnoses but was not considered disabling.

The Veteran denied any history of eye trouble on a periodic physical examination in July 1992.

On outpatient treatment in January 1994, no complaints were noted.  Objective examination showed distant visual acuity of 20/20-1 in the right eye and 20/20-2 in the left eye, pupils equal, round, and reactive to light and accommodation, intact extraocular movements, and a full central visual field to confrontation.  Slit lamp examination showed clear corneas, conjunctivae, irises, and lenses bilaterally.  The assessment included no apparent ocular pathology in both eyes.

On periodic physical examination in June 1994, the Veteran denied any history of eye trouble.  He certified that he did not wear contact lenses and had never worn contact lenses.  He also certified that he was not aware "that my vision has been worse than 20/20" and had not had eye surgery.  Clinical evaluation of his eyes was normal.  Slit lamp examination was within normal limits.  The Veteran's visual acuity was 20/30 correctable to 20/20 bilaterally.  He had a full field of vision.  Although bilateral defective distant visual acuity was noted in a summary of defects and diagnoses, this was not considered disabling.  On outpatient treatment later in June 1994, the Veteran's distant visual acuity was 20/30 bilaterally.  Slit lamp examination was within normal limits.  The assessment included ametropia bilaterally which was not considered disabling.

On periodic physical examination in September 1994, clinical evaluation of the Veteran's eyes was normal.  The Veteran's visual acuity was 20/30 correctable to 20/20 bilaterally.  He had a full field of vision.

On periodic physical examination in September 1995, clinical evaluation of the Veteran's eyes was normal.  The Veteran's visual acuity was 20/40 correctable to 20/20 in the right eye and 20/30 correctable to 20/20 in the left eye.  The Veteran had a full field of vision.  

On outpatient treatment later in September 1995, it was noted that the Veteran "can no longer see 20/30 uncorrected on 20 [foot] eye lane."  The Veteran's distant visual acuity was 20/40 in the right eye and 20/30 in the left eye.  The assessment included compound myopic astigmatism in the left eye.

In May 1996, the Veteran complained that his "distant vision [was] getting worse."  The Veteran's distant visual acuity was 20/20 in the right eye and 20/15 in the left eye.  The assessment was compound myopic astigmatism.

On periodic physical examination in September 1997, clinical evaluation of the Veteran's eyes was normal.  The Veteran's visual acuity was 20/60 in the right eye correctable to 20/15 and 20/30 correctable to 20/15 in the left eye.  His field of vision was full.  It was noted that the Veteran's distant visual acuity corrected to better than 20/20 bilaterally and was not considered disabling.

On outpatient treatment in October 1997, the Veteran's complaints included "worsening distance vision."  The Veteran's visual acuity was 20/60- in the right eye and 20/30+2 in the left eye.  Physical examination showed full extraocular movements.  The impressions included myopic astigmatism.

In a memorandum dated in October 1997 and included in the Veteran's service treatment records, the Flight Surgeon for his U.S. Marine Corps helicopter squadron recommended that he receive a waiver for flight status.  It was noted that the Veteran initially had been "granted a waiver for deficient distant visual acuity while a Student Naval Aviator in OCT 94.  His acuity at that time was 20/30 [in both eyes] correctable to 20/20 [in both eyes]."  The Veteran's eyesight subsequently "fell within standards, and he no longer needed a waiver.  His eyesight has slowly decreased with values of 20/40 [in the right eye] and 20/30 [in the left eye] (Correctable to 20/20 [bilaterally]) in 1995 to 20/70 [in the right eye] and 20/200 [in the left eye] (Correctable to 20/20 [bilaterally])...on 29 SEP 97."  With correction, his visual acuity had improved to 20/15 bilaterally which "also exceeded standards."  A waiver was recommended "with the restrictions that correction must be worn and an extra pair of spectacles must [be] carried while in flight."

On outpatient treatment in December 1997, the Veteran's distant visual acuity was 20/25-1 correctable to 20/20 in the right eye and 20/25 correctable to 20/20 in the left eye.  

In a memorandum dated in July 1998 and included in the Veteran's service treatment records, the Chief, Bureau of Medicine and Surgery, U.S. Department of the Navy, notified the Commandant of the Marine Corps that the Veteran "is not physically qualified for all duty involving flying due to...excessive refractive error, exceeding standards (previously waivered); this condition is considered permanent."  Upon review, this official determined that a waiver was recommended "for duty involving actual control of aircraft as a Naval Aviator."  This waiver was contingent upon, among other things, "that condition does not worsen."  According to additional service personnel records contained in the Veteran's service treatment records, this waiver was granted later in July 1998.

On outpatient treatment in August 1998, the Veteran's visual acuity was 20/15-1 in the right eye and 20/15-2 in the left eye.  Physical examination of the eyes was within normal limits.  On periodic physical examination later in August 1998, physical examination showed that the Veteran's eyes were normal clinically.  His visual acuity was 20/70 correctable to 20/20 bilaterally.  

In April 1999, it was noted that the Veteran was being seen for a new contact lenses prescription.  A history of left superior oblique palsy (diplopia) was noted.  The assessment was bilateral compound myopic astigmatism.

On an "Abbreviated Aeromedical Examination" in August 1999, it was noted that the Veteran had experienced slight change in his distant visual acuity but it still was correctable to 20/20 and was not considered disabling.  Physical examination showed distant visual acuity 20/100 correctable to 20/20 in both eyes.  It was noted that he was on a waiver for "vision" and "waiver continuance" was recommended.

On outpatient treatment in April 2000, it was noted that the Veteran "has no vision complaints" for either his far or near vision.  The Veteran's corrected visual acuity was 20/25 bilaterally.  Physical examination showed pupils equal, round, and reactive to light and accommodation, full visual fields to confrontation in all quadrants bilaterally, clear lids/lashes, conjunctiva/sclerae, corneas, and irises, deep and quiet anterior chambers, and clear lenses.  The assessment included good ocular health bilaterally and compound myopic astigmatism bilaterally.

In December 2000, the Veteran's corrected distant visual acuity was 20/25- in the right eye and 20/25+2 in the left eye.  Physical examination showed pupils equal, round, and reactive to light and accommodation, safe extraocular movements, a full field of vision, and slit lamp examination was within normal limits.  The assessment included myopia and astigmatism.  It was noted that the Veteran's ocular health was within normal limits.

On periodic physical examination in December 2000, he reported a history of eye trouble which the in-service examiner noted was left superior oblique muscle palsy subject of a previous waiver.  Clinical evaluation showed that the Veteran's distant vision was 20/25 correctable to 20/20 in both eyes.  He had a full field of vision bilaterally.  It was noted that, although the Veteran's defective distant visual acuity exceeded standards, it was subject to a previous waiver.

In October 2001, no relevant complaints were noted.  It was noted that the Veteran wore contact lenses.  His distant visual acuity was 20/15-1 correctable to 20/15 bilaterally.  Physical examination showed pupils equal, round, and reactive to light and accommodation, normal extraocular movements, and a normal slit lamp examination.  The assessment included bilateral compound myopic astigmatism.

In June 2002, the Veteran's distant visual acuity was 20/300 correctable to 20/20 in the right eye and 20/200 correctable to 20/20 in the left eye.  Slit lamp examination showed clear corneas and lenses.  It was noted that the Veteran had good ocular health.  On periodic physical examination later in June 2002, the Veteran denied any history of eye trouble.  Clinical evaluation of his eyes was normal.  His distant vision was 20/200 correctable to 20/30 in the right eye and 20/100 correctable to 20/25 in the left eye.  

In an "Aeromedical Summary" dated in October 2002 and included in the Veteran's service treatment records, it was noted that the Veteran had been granted a waiver in 1997 for flying duty because of an excessive refractive error of the eyes.  "He has remained stable with no difficulties flying."  Physical examination showed pupils equal, round, and reactive to light and accommodation and intact extraocular movements.  The diagnoses included unspecified disorder of refraction and accommodation (excessive refractive error).

On outpatient treatment in February 2003, the Veteran's distant visual acuity was 20/200 correctable to 20/17 in the right eye and 20/100 correctable to 20/17 in the left eye.  The diagnoses included compound myopic astigmatism in both eyes which was outside Flying Class II standards "with cycloplegia, correctable to 20/20 or better."

In July 2003, it was noted that the Veteran had been "granted indef[inite] waiver for unspecified disorder of refraction/accommodation."  It also was noted that this indefinite waiver was for, among other things, a "compound myopic astigmatism corrected to 20/20."  The Veteran was advised that he needed to be re-evaluated in 3 years.

In September 2004, the Veteran's distant visual acuity was 20/200 correctable to 20/17 in both eyes.  He wore contact lenses and had "no concerns, no problems."  He was found qualified for worldwide duty and his occupational duties.

On a post-deployment health assessment completed in November 2005, the Veteran denied experiencing any redness of eyes with tearing or dimming of vision during this deployment.  No referral was indicated.

In a March 2006 "Aeromedical Summary," it was noted that the Veteran "was determined to be qualified for Flying Class II duties on 1 Apr 2006 following completion of his annual Periodic Health Assessment.  He has no health problems."  A recent deployment to southwest Asia "flying under varying weather conditions with use of [night vision goggles] for some operations" was noted.  "He reports no problems during the deployment and was able to complete all missions."  The diagnoses included astigmatism (compound myopic astigmatism in both eyes, exceeding Flying Class II standards for myopia in the right eye "but within waiver criteria and correctable to 20/20").  A waiver renewal "for continuing Flying Class II duties" was recommended due, in part, to "the lack of complications or changes in his conditions."

A review of an AF Form 1042, "Medical Recommendation For Flying Or Special Operational Duty," completed in April 2006 and included in the Veteran's service treatment records shows that he was medically cleared for duty following a periodic medical examination.  This medical clearance expired in September 2007.  The Veteran signed this form and certified that he wore contact lenses "while performing flying or special operational duty."

On a post-deployment health assessment completed in July 2006, the Veteran reported that he had been deployed twice in the past 5 years.  He identified his "Location of Operation" as Iraq, Afghanistan, Kuwait, Qatar, and Africa.  He also stated that his current assignment was as a C-130 pilot.  The Veteran denied experiencing any redness of eyes with tearing or dimming of vision during this deployment.  No referral was indicated.

On outpatient treatment in September 2006, it was noted that the Veteran's compound myopic astigmatism in both eyes exceeded Flying Class II standards for myopia in the left eye but was within waiver criteria and correctable to 20/20.  

A review of an AF Form 1042, "Medical Recommendation For Flying Or Special Operational Duty," completed in October 2006 and included in the Veteran's service treatment records shows that he was medically restricted from flying or special operational duty (duties not including flying).  This medical clearance expired in September 2007.  The Veteran signed this form and certified that he wore contact lenses "while performing flying or special operational duty."

An "Aeromedical Evaluation Summary Sheet" dated in November 2006 and included in the Veteran's service treatment records shows that he was medically disqualified from further flying with no waiver recommended for, among other things, compound myopic astigmatism in both eyes.

The post-service evidence shows that, on private outpatient treatment in December 2006, the Veteran complained that he "recently [was] grounded from flying due to declining [visual acuity]."  He also complained of decreased visual acuity.  He usually wore contact lenses.  His visual acuity was 20/400 correctable to 20/20-1 in both eyes.

In a January 2007 letter, R.A.M., M.D., noted that the causes of the decline in the Veteran's distant from 20/20 to 20/400 "in such a short amount of time for a young man" were "unknown."

On VA examination in February 2007, the Veteran's complaints included decreased vision that was "still correctable to 20/20 with glasses."  He was able to perform all of his activities of daily living by wearing glasses.  "Without his glasses, he feels he is legally blind."  Physical examination showed distant vision 10/400 correctable to 20/20 in the right eye and 15/400 correctable to 20/20 in the left eye, normal lids, lashes, and conjunctivae, slit lamp examination within normal limits, a slightly large pupil on the left than the right, and clear lenses.

On VA examination in November 2007, the Veteran's complaints included "progressive degradation of the vision."  His visual acuity was 20/400 correctable to 20/20 in both eyes.  Physical examination showed pupils equal, round, and reactive to light and accommodation, full extraocular movements bilaterally, intact color visions, normal slit lamp examination, and full visual fields in both eyes.  The diagnoses included refractive error (myopic astigmatism) in both eyes.  "The loss of vision derives from the refractive error and could be corrected with eye glasses."

On VA examination in June 2011, no relevant complaints were noted.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran's distant visual acuity was 20/300 correctable to 20/20 in the right eye and 20/400 correctable to 20/20 in the left eye.  Slit lamp examination was normal except for mild facial asymmetry with hypertrophy of left side and very mild right head tilt.  The Veteran had full visual fields to confrontation.  The assessment included myopia/astigmatism with "good vision with refraction."

In a September 2011 addendum to the June 2011 VA examination report, a second VA optometrist opined that it was less likely than not that the Veteran's congenital bilateral astigmatism "was the subject of aggravation by a superimposed disease or injury."  The rationale for this opinion was that astigmatism was a refractive error and the Veteran's vision "is fully correctable to good vision in both eyes."

Analysis

The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for bilateral astigmatism.  The Board notes initially that astigmatism is defined as unequal curvature of the refractive surfaces of the eye.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 168 (30th ed. 2003).  The Veteran has contended that he incurred his current bilateral astigmatism during active service.  Although the Veteran does not contend specifically that his bilateral astigmatism existed prior to service and was aggravated by service, the Board notes that it is required to consider all potential theories of entitlement to service connection.  See also Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence).  The record evidence does not support the Veteran's assertions regarding in-service incurrence of bilateral astigmatism.  Nor does it support finding a medical nexus between this disability and active service.  It shows instead that, although bilateral astigmatism was not noted at his enlistment physical examination in October 1990 and his vision was 20/20 (or within normal limits) bilaterally at that time, it was not aggravated by a superimposed disease or injury experienced during service.  See VAOPGCPREC 82-90 (July 18, 1990).

The VA optometrist concluded in September 2011 that the Veteran had a congenital bilateral astigmatism but it was less likely than not aggravated by a superimposed disease or injury experienced during service because it was a refractive error and fully correctable to good vision in both eyes.  The Board notes in this regard that congenital astigmatism is defined as an astigmatism which existed at birth.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 169 (30th ed. 2003).  The Board also notes in this regard that refractive error of the eye (including astigmatism) is not considered a disease or injury for VA disability compensation purposes.  See 38 C.F.R. § 4.9 (2012).  Although bilateral astigmatism was not noted at the Veteran's service entrance in October 1990, the September 2011 VA optometrist's opinion persuasively suggests that a congenital bilateral astigmatism existed prior to service.  Thus, the Board finds that there is clear and unmistakable (obvious or manifest) evidence that a congenital bilateral astigmatism existed prior to service.  38 U.S.C.A. §§ 1112, 1132; 38 C.F.R. § 3.304.

The record evidence also shows that, although the Veteran's bilateral astigmatism existed prior to service, it did not increase in severity during active service.  This finding is based on the Board's review of all of the record evidence pertaining to the manifestations of the Veteran's bilateral astigmatism prior to, during, and subsequent to service.  The Veteran essentially has contended that his bilateral astigmatism was aggravated by a superimposed disease or injury experienced during service and he is entitled to service connection on the basis of in-service aggravation.  See VAOPGCPREC 82-90 (July 18, 1990).  The Board acknowledges that the Veteran's available service treatment records show frequent treatment and evaluation of multiple eye problems during service, to include bilateral astigmatism.  Although it is unfortunate that the Veteran's 2009 service treatment records could not be obtained, he has not asserted that he complained of or was treated for bilateral astigmatism while on active service in 2009.  The Board also acknowledges that the Veteran received multiple medical waivers during active service for bilateral astigmatism, among other eye disabilities.  

It appears that the Veteran was prohibited from flying duties in approximately November 2006 due to worsening double vision (or diplopia) in the left eye, although compound myopic astigmatism was noted as another eye diagnosis contributing to the denial of a medical waiver and his ultimate suspension from flying duties.  The Board notes in this regard that compound myopic astigmatism is defined as astigmatism in which all meridians are myopic, both principal meridians having their foci in front of the retina; vertical lines are usually more distinct.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 169 (30th ed. 2003).  The Board finds it significant, however, that, despite an apparent deterioration in the Veteran's distant visual acuity during service, it remained correctable to 20/20 or better throughout his 15 years of active service.  The post-service evidence shows that, after diagnosing the Veteran as having a refractive error (myopic astigmatism) in November 2007, the VA examiner concluded that the Veteran's "loss of vision derives from the refractive error and could be corrected with eye glasses."  A different VA examiner concluded in September 2011 that the Veteran's vision was "fully correctable to good vision in both eyes."  More importantly, the September 2011 VA examiner opined that that it was less likely than not that the Veteran's congenital bilateral astigmatism "was the subject of aggravation by a superimposed disease or injury" during active service.  

Even assuming for the sake of argument only that the Veteran's vision was not correctable to 20/20 or better during active service, the record evidence (in this case, the VA optometrist's September 2011 opinion) demonstrates that a pre-service bilateral astigmatism was not aggravated by service or a superimposed disease or injury experienced during service.  See VAOPGCPREC 82-90 (July 18, 1990).  There is no record evidence contemporaneous to the Veteran's service or since his service separation which indicates otherwise.  Because there is clear and unmistakable (obvious or manifest) evidence that bilateral astigmatism existed prior to service and was not aggravated by service, the Board finds that aggravation of pre-service bilateral astigmatism may not be conceded and the presumption of in-service aggravation of pre-existing disability is rebutted.  See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see also VAOPGCPREC 82-90 (July 18, 1990).  Thus, the Board finds that service connection for bilateral astigmatism is not warranted on the basis of in-service aggravation.  

The Veteran also is not entitled to service connection for bilateral astigmatism on a direct basis.  See 38 C.F.R. §§ 3.303, 3.304 (2012).  The Veteran has contended that he incurred bilateral astigmatism during active service and experienced continuous disability due to bilateral astigmatism since service.  As noted above, because bilateral astigmatism is not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim.  See Walker, 708 F.3d at 1331; see also 38 C.F.R. § 3.309(a).  The record evidence shows instead that, although the Veteran has complained of and been treated for a variety of eye problems, to include bilateral astigmatism, during and after active service, his bilateral astigmatism is congenital and is not related to active service or any incident of service.  As noted elsewhere, service connection is prohibited for congenital disabilities.  See 38 C.F.R. § 4.9.  

The Veteran's service treatment records show complaints of and treatment for bilateral astigmatism (variously diagnosed as compound myopic astigmatism and myopia and astigmatism).  These records also show that his distant visual acuity was correctable to 20/20 in both eyes when tested repeatedly during service.  The Veteran's refractive error was not considered disabling on periodic physical examination in January 1992 and he denied any history of eye trouble on periodic physical examination in July 1992.  No ocular pathology was noted on outpatient treatment in January 1994.  Periodic physical examination in September 1997 showed distant visual acuity correctable to 20/20 and was not considered disabling.  The Veteran's ocular health was good bilaterally on outpatient treatment in April 2000 and again was within normal limits on outpatient treatment in December 2000.  An Aeromedical Summary in October 2002 showed that the Veteran was stable.  And, in March 2006, the Veteran reported no problems with his eyes during his most recent overseas deployment.

The post-service evidence also does not support granting service connection for bilateral astigmatism on a direct basis.  See 38 C.F.R. §§ 3.303, 3.304.  The Board acknowledges that the Veteran has complained of and been treated for bilateral astigmatism since his service separation.  There is no indication, however, that this disability is related to active service and, in any event, service connection is prohibited for refractive error of the eyes (or bilateral astigmatism).  See 38 C.F.R. § 4.9.  The November 2007 VA examiner diagnosed the Veteran as having a refractive error (or astigmatism) in both eyes which had resulted in declining vision that was correctable to 20/20 in both eyes when he wore eyeglasses.  The September 2011 VA examiner similarly concluded that the Veteran's congenital bilateral astigmatism "was fully correctable to good vision in both eyes."  The Veteran also has not identified or submitted any evidence, to include a medical nexus, which indicates that his bilateral astigmatism is related to active service or any incident of service.  In summary, the Board finds that service connection for bilateral astigmatism is not warranted.

In this decision, the Board has considered all lay and medical evidence as it pertains to the issue.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence").  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown,6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, bilateral astigmatism falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

As part of the current VA disability compensation claim, in recent statements, the Veteran has asserted that his symptoms of bilateral astigmatism have been continuous since service.  He asserts that he continued to experience symptoms relating to bilateral astigmatism (declining distant vision) after he was discharged from service.  In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran experienced continuous symptoms of bilateral astigmatism after service separation.  The post-service evidence suggests that the Veteran's distant vision in both eyes appears to have declined further since his service separation although it remained correctable to 20/20 in both eyes with eyeglasses or contact lenses.  Further, the Board concludes that the Veteran's assertion of continued symptomatology due to bilateral astigmatism since service separation, while competent, also is credible.  Nonetheless, given the congenital nature of the Veteran's bilateral astigmatism (as documented in his medical records), and because service connection is prohibited for congenital disabilities such as refractive error of the eyes, the Board finds that service connection for bilateral astigmatism is not warranted.  See 38 C.F.R. § 4.9.

Higher Initial Rating for Diplopia

The Veteran contends that his service-connected diplopia of the left eye is more disabling than currently evaluated.  He specifically contends that his double vision (or diplopia) has worsened significantly and resulted in him feeling that he is completely blind without wearing eyeglasses or contact lenses.  He also specifically contends that, because his distant vision in the (non-service-connected) right eye has worsened, he is entitled to a higher initial rating for his service-connected diplopia of the left eye.

Law and Regulations

In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings.  The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history.  38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where, as in this case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's service-connected diplopia of the left eye currently is evaluated as 30 percent disabling under 38 C.F.R. §§ 4.79, 4.83a, Table V, 4.84a, DC's 6074, 6092 (effective prior to December 10, 2008).  The Board notes that the rating schedule for evaluating disabilities of the eyes was revised and amended effective December 10, 2008.  See 73 Fed. Reg. 66549 (Nov. 10, 2008).  The revised criteria apply to all applications for benefits received by VA on or after that date.  Because the Veteran's claim was received in December 2006, the revised rating criteria are inapplicable to his higher initial rating claim for diplopia of the left eye.

The former rating criteria for evaluating eye disabilities, in effect prior to December 10, 2008, provided that, in rating impairment of visual acuity, the best distant vision obtainable after best correction with glasses will be the basis of rating, except in cases of keratoconus in which contact lenses are medically required.  38 C.F.R. § 4.75.  Where service connection is in effect for a disability of only one eye, the degree of impairment in the nonservice-connected eye is not for consideration unless there is blindness in one eye as the result of service-connected disability and blindness in the other eye as a result of nonservice-connected disability.  38 C.F.R. § 3.383(a)(1).  In other words, where only one eye is service-connected and the Veteran is not blind in both eyes, the other eye is considered normal for rating purposes.  38 C.F.R. § 4.14 (manifestations not resulting from the service-connected disability may not be used in establishing the service-connected evaluation).  The former rating criteria for evaluating eye disabilities also provided that, where service connection is in effect for visual impairment in only one eye (as in this case), the visual acuity in the non-service-connected eye will be considered 20/40 for purposes of evaluating the service-connected visual impairment.  38 C.F.R. § 4.75(c).

The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a.  Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity.  38 C.F.R. § 4.84a, DC's 6061 to 6079.  The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye.  38 C.F.R. § 4.83a, Table V.

Under the former DC 6074, a 30 percent rating was assigned when vision in one eye was 5/100 and vision in the other eye was 20/40.  DC 6073 required that, when vision was 5/100 in one eye, a 40 percent rating was assigned if vision in the other eye was 20/50.  DC 6078 provided that, when vision in one eye was 20/100 and vision in the other eye was 20/70, a 30 percent rating was assigned.  DC 6078 also provided that, when vision in one eye was 20/100, a 50 percent rating was assigned when vision in the other eye was also 20/100. 

Diplopia is double vision.  Dean v. Brown, 8 Vet. App. 449, 451 (1995).  " Diplopia which is only occasional or correctable is not considered a disability."  38 C.F.R. § 4.77.  The former DC 6092 provided that diplopia, due to limited muscle function, was to be rated under DC 6090.  The former DC 6090 provided that the degree of diplopia in a specific quadrant of a field of vision in the affected eye determined the assignment of an equivalent impairment of visual acuity.  As relevant to this claim, diplopia in the central field of vision to 20 degrees was the equivalent visual acuity of 5/200.  Note (2) to the former DC 6090 indicated that this rating will be applied to only one eye and not when a Veteran experiences both diplopia and decreased visual acuity or field of vision in the same eye.  Note(2) also provided that when diplopia is present and there is also ratable impairment of visual acuity or field of vision of both eyes the ratings for diplopia will be applied to the poor eye while the better eye is rated according to the best corrected visual acuity or visual field. 38 C.F.R. § 4.84a, DC 6090.  In this case, because service connection is in effect only for diplopia of the left eye, there is no ratable impairment of both eyes.

Factual Background

The Veteran's service treatment records clearly document multiple in-service complaints of and treatment for diplopia of the left eye.  These records also indicate that the Veteran received several medical waivers for diplopia of the left eye so that he could continue flying aircraft during active service (as discussed above) until approximately November 2006 when he was disqualified permanently from flying duties because this disability had worsened.  For example, 

On outpatient treatment in December 1997, the Veteran's distant visual acuity was 20/25-1 in the right eye and 20/25 in the left eye.  Red lens test showed diplopia with upward right gaze.  The impressions included diplopia in superior right gaze.

In August 1998, the Veteran reported oblique diplopia only in his extreme right gaze.  The Veteran also was granted a waiver in August 1998 for, among other things, diplopia (left superior oblique muscle palsy) which was considered permanent.    The Veteran was advised that this condition "must remain asymptomatic without the use of medication.  Your visual acuity must be corrected to 20/20 and the correction worn while flying, and your condition must not worsen."

In April 2000, the Veteran denied any vision complaints in far or near vision.  A history of diplopia and left superior oblique palsy was noted with no changes reported.  The Veteran's distant visual acuity with correction was 20/25-1 in the right eye and 20/25-2 in the left eye.  Diplopia was noted on superior left gaze and on right and superior right gaze.  Slit lamp examination was normal.  The assessment included good ocular health in both eyes and a history of left superior oblique palsy with diplopia in superior right and superior left gaze today which is "stable per" the Veteran.  The Veteran was advised to return to the optometry clinic if his diplopia worsened.

In June 2002, the Veteran's visual acuity was 20/20 in both eyes.  Red lens test showed diplopia in the upper right gaze.  Slit lamp examination was normal.  The assessment included diplopia in the upper right gaze and normal ocular findings.  Periodic physical examination later in June 2002 showed distant vision of 20/300 correctable to 20/20 in the right eye and 20/200 correctable to 20/20 in the left eye.  It was noted that the Veteran had "double vision" (or diplopia) in the left eye "only when looking up" and to the right.

On Aeromedical Summary in August 2002, it was noted that the Veteran had been diagnosed as having diplopia initially in December 1997 and was granted a waiver for flying duties.  "He has remained stable with no difficulties flying.  His diplopia is due to a left superior oblique muscle palsy."  Physical examination showed pupils equal, round, and reactive to light and accommodation and intact extraocular movements.  The diagnoses included diplopia upper right gaze on Red Lens Test.  The Flight Surgeon who completed this Aeromedical Summary noted that the Veteran "is applying for Flying Class I duties.  His on the job performance as a pilot should be unaffected since he is corrected to 20/20."  This official recommended that the Veteran receive a waiver "based on favorable outcome for flying class I duties."

On outpatient treatment in February 2003, it was noted that the Veteran had been diagnosed as having diplopia in right gaze due to congenital left superior oblique palsy.  It also was noted that the Veteran's diplopia was well compensated and stable.  An "Aeromedical Evaluation Summary Sheet" dated later in February 2003 shows that the Veteran was diagnosed as having, among other things, diplopia in the right gaze due to left superior oblique palsy which was well-compensated and stable.  Although he was medically disqualified from Flying Class II duties, a waiver was recommended.

On Aeromedical Consultation in September 2006, the Veteran's complaints included "interval progressive worsening of the diplopia that has been occurring on right gaze, such that it is now occurring closer to primary gaze than previously."  A history of congenital left superior oblique palsy was noted.  It also was noted that the Veteran's duties were as a pilot.  The Veteran's distant visual acuity was 20/400 correctable to 20/15-2 in the right eye and 20/200-1 correctable to 20/15-1 in the left eye.  Physical examination showed normal lids, conjunctivae, and adnexa, full visual fields to confrontation bilaterally, no habitual head turn or tilt, -2 superior oblique weakness with compensatory 2+ inferior oblique overaction in the left eye, and a normal slit lamp examination.  Red lens testing showed diplopia "with all right-sided gazes."  Diplopic fields testing showed "diplopia with all right-sided gazes greater than 5 to 6 degrees from primary gaze."  Worth 4-Dot testing showed "diplopia at near and distance without suppression."  The diagnoses included diplopia in right gaze secondary to congenital left superior oblique palsy with compensatory inferior oblique overaction which had progressed and was partially decompensated.  The Veteran was disqualified for Flying Class II duties due, in part, to these diagnoses and a waiver was not recommended.

An "Aeromedical Evaluation Summary Sheet" dated in November 2006 and included in the Veteran's service treatment records shows that he was diagnosed as having, among other things, diplopia in right gaze secondary to congenital left superior oblique palsy with compensatory inferior oblique overaction which was progressed and partially decompensated and red lens test failure secondary to congenital left superior oblique palsy with compensatory inferior oblique overaction which was progressed and partially decompensated.  The Veteran was medically disqualified for Flying Class II duties with no waiver recommended.

The post-service evidence shows that, in a November 2006 letter, S.P.M. stated that he had served with the Veteran and recalled that the Veteran had been diagnosed as having double vision during service.  S.P.M. also stated that this disability had worsened significantly "through the years."

In a January 2007 letter, R.A.S., M.D., stated that the Veteran's "binocular diplopia is not occasional and constant and his latest ophthalmologist exam dated 9/06 shows the double vision being at about 5 degrees off primary gaze."  (Emphasis in original.)

On VA general medical examination in February 2007, the Veteran's complaints included double vision.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  He noted that the Veteran's double vision "has been extensively investigated and is attributed to diplopia of unknown origin."  He also noted that the Veteran "used to be a full time pilot but he was terminated since his license for a commercial pilot was revoked by the FAA" due to, in part, his diplopia.  The Veteran currently worked "full time in the computer field now and has not had to take any time off on sick leave in the past 12 months."  Physical examination showed corrected vision of 20/30 in both eyes "with glasses on."  The diagnoses included idiopathic benign diplopia.

On VA eye examination in February 2007, the Veteran's complaints included "diplopia in right gaze as well as to within 5 degrees of his central vision" in the left eye.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  "He feels he cannot work as a pilot, either military or commercial, with this disability, and is unable to work as a state trooper."  The Veteran also stated that "he feels he is legally blind" without wearing his glasses.  The Veteran's distant vision was 10/400 in the correctable to 20/20 in the right eye and 15/400 correctable to 20/20 in the left eye.  Physical examination showed under action of the left superior oblique muscle and right gaze with over action of left inferior oblique muscle "causing the eye to deviate upward and inward," and a left hypertropia "of about 20 diopters, which is significantly worse in right gaze but is present in primary gaze as well.  Worth 4 dot test showed diplopia within 5 degrees of central vision "in both the upper and the lower, as well as the para central gaze."  Slit lamp examination was within normal limits.  "[T]he pupil on the left is slightly larger than on the right."  There were clear lenses in both eyes.  The assessment included double vision "about 5 degrees off of his central vision to the right."

On VA examination in November 2007, the Veteran's complaints included "worsening of the diplopia."  The Veteran stated that he "started having double vision in the right visual field when he gazed right."  His distant visual acuity was 20/400 corrected to 20/20 in both eyes.  Physical examination showed pupils equal, round, and reactive to light and accommodation, full extraocular movements, intact color vision, left hypertropia, "the vertical deviation is worse on right gaze and left head tilt," normal slit lamp examination, and full visual fields in both eyes.  The diagnoses included diplopia (or double vision) which "derives from the left superior oblique paresis.  The double vision is constant at far [vision] from the center to the right.  The double vision could be corrected with 14 prism diopters, axis 120, base down on the left eye."

On VA examination in February 2008, the Veteran's complaints included double vision which had begun while he was on active service in January 1997.  His double vision was present "at all times on lateral gaze.  Recently, the degree of the double vision has increased and it presents very quickly on minimum and the angle of which the symptoms present has become smaller."  Physical examination showed "[c]ranial nerves were remarkable for diplopia on lateral gaze bilaterally.  No clear disconjugate gaze noted.  No asymmetry in the pupillary size is noted."  The assessment included diplopia secondary to a history of left superior oblique palsy "which is persistent since 1997 and do not anticipate significant change in the condition."

On VA examination in January 2009, the Veteran complained of double vision.  "The double vision is in the right visual filed only.  He had surgical left superior oblique paresis repair on July 25, 2008 with much improvement of the double vision."  The Veteran's distant visual acuity was 20/400 correctable to 20/20 in both eyes.  Physical examination showed pupils equal, round, and reactive to light and accommodation, full extraocular movements, intact color vision, "left esotropia of 4 prism diopters," normal slit lamp examination, and full visual fields in both eyes.  The VA examiner stated, " The double vision is constant at far and at near only in the right visual field, starting at 25 degrees from the center to the right.  The double vision could be corrected with 4 prism diopters, based out in front of the left eye."  Objective factors for diplopia were small angel esotropia in the left eye.  Subjective factors for diplopia were "cosmetically acceptable.  Diplopia could be compensate[d] by turning the head slightly to the right and could become better or less likely worse with time."  The diagnoses included diplopia, post-surgical left superior oblique paresis repair.

On VA examination in June 2011, the Veteran complained of binocular diplopia.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran's distant visual acuity was 20/300 correctable to 20/20 in the right eye and 20/400 correctable to 20/20 in the left eye.  Diplopia was noted in the Veteran's visual field.  The assessment included diplopia visual field.

Analysis

The Board finds that the preponderance of the evidence is against granting the Veteran's claim for an initial schedular rating greater than 30 percent for diplopia of the left eye.  The Veteran has contended that his service-connected diplopia of the left eye is more disabling than currently evaluated.  The record evidence does not support his assertions concerning his entitlement to a higher initial schedular rating for his service-connected diplopia of the left eye, however.  It shows instead that the Veteran's service-connected diplopia of the left eye has been manifested by, at worst, visual acuity in the left eye equivalent to 5/200 (based on diplopia in the central field of vision to 20 degrees) throughout the appeal period.  Because service connection is not in effect for a right eye disability, the Veteran's visual acuity in the right eye is considered 20/40 for rating purposes.  See 38 C.F.R. § 4.75(c).  This equates to a 30 percent schedular rating for the Veteran's service-connected diplopia of the left eye under the former rating criteria for evaluating eye disabilities.  See 38 C.F.R. § 4.79, 4.83a, Table V, 4.84a, DC's 6074, 6092 (effective prior to December 10, 2008).  The February 2008 VA examiner specifically concluded that no "significant change" was anticipated in the Veteran's diplopia in the left eye because it had persisted since 1997 and was secondary to his left superior oblique muscle palsy.  The January 2009 VA examiner concluded that the Veteran could compensate for his diplopia by turning his head slightly to the right which might improve this disability over time.  

There also is no indication in the record evidence that, at any time during the appeal period, the Veteran's visual acuity in the left eye has been manifested by the anatomical loss of 1 eye as is required for an initial 40 percent schedular rating under DC 6066 with visual acuity in the non-service-connected right eye of 20/40.  See 38 C.F.R. § 4.83a, Table V, DC 6066 (effective prior to December 10, 2008).  Nor does the evidence indicate that the Veteran's corrected distant visual acuity in the non-service-connected right eye is worse than 20/40 at any time during the appeal period as is required for a higher initial schedular rating than 30 percent under 38 C.F.R. § 4.83a, Table V, with visual acuity in the service-connected left eye of 5/200.  See, for example, 38 C.F.R. § 4.83a, Table V, DC 6073 (effective prior to December 10, 2008).  The Board acknowledges in this regard that, although it appears that the Veteran's uncorrected distant visual acuity has worsened in the right eye, it has been correctable to 20/20 or better throughout the appeal period.  The Veteran also has not identified or submitted any evidence, to include a medical nexus, which demonstrates his entitlement to an initial schedular rating greater than 30 percent for diplopia of the left eye under the former rating criteria for evaluating eye disabilities.  In summary, the Board finds that the criteria for an initial rating greater than 30 percent for diplopia of the left eye have not been met.

The Board finally finds that consideration of additional staged ratings for the Veteran's service-connected diplopia of the left eye is not warranted.  The record evidence demonstrates that the Veteran has experienced essentially the same level of disability due to his service-connected diplopia of the left eye throughout the appeal period.  Thus, consideration of staged ratings is not warranted.  See Fenderson, 12 Vet. App. at 119.

Extraschedular Rating for Diplopia

The Board must consider whether the Veteran is entitled to consideration for referral to the Director, C&P Service, for the assignment of an extraschedular rating for his service-connected diplopia of the left eye.  38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record).  

An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

The Board finds that the initial schedular 30 percent rating currently assigned for the Veteran's service-connected diplopia of the left eye is inadequate.  The Board also finds that, although the Veteran is not entitled to a higher initial schedular rating for his service-connected diplopia of the left eye (as outlined above), the diagnostic criteria do not describe adequately the current severity and symptomatology of this disability.  The record evidence persuasively suggests that this disability is manifested by symptomatology not contemplated within the Rating Schedule, especially in light of the inapplicability of the revised rating criteria for evaluating eye disabilities (as outlined above).  See 38 C.F.R. §§ 4.79, 4.83a, Table V, 4.84a, DC's 6074, 6092 (effective prior to December 10, 2008).  It shows that this disability is manifested by continuing complaints of severe vision problems bilaterally, residual diplopia despite corrective surgery to the left eye in July 2008, esophoria, and hyperphoria.  The Board notes in this regard that esophoria is defined as a form of heterophoria in which there is a deviation of the visual axis of an eye toward that of the other eye after the visual fusional stimuli have been eliminated.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 643 (30th ed. 2003).  The Board also notes in this regard that hyperphoria is defined as a form of heterophoria in which there is permanent upward deviation of the visual axis of an eye after the visual fusional stimulus has been eliminated.  Id., at 886.  In other words, the evidence indicates that the Veteran's visual axis of the service-connected left eye turns up and towards the right eye.  Neither esophoria nor hyperphoria are contemplated within the former rating criteria for eye disabilities used in evaluating the Veteran's service-connected diplopia of the left eye, however.  See 38 C.F.R. §§ 4.79, 4.83a, Table V, 4.84a, DC's 6074, 6092 (effective prior to December 10, 2008).  

Moreover, the evidence demonstrates other related factors such as marked interference with employment due to the Veteran's service-connected diplopia of the left eye.  The Veteran has contended strenuously throughout the pendency of this appeal that, after receiving multiple in-service medical waivers which permitted him to continue flying, he was disqualified permanently from flying in approximately November 2006 as a result of worsening service-connected diplopia of the left eye.  The Veteran also has contended strenuously throughout the pendency of this appeal that, since his service separation, his worsening service-connected diplopia of the left eye has prevented him from working as an aircraft pilot because he did not meet the relevant vision standards.  He has contended further throughout the pendency of this appeal that, since service, his worsening service-connected diplopia of the left eye also has prevented him from seeking employment as a state trooper because he did not meet the relevant vision standards.

The record evidence supports these assertions and clearly demonstrates that the Veteran's service-connected diplopia of the left eye has interfered markedly with his employment.  The Veteran was disqualified permanently from flying in approximately November 2006 due to worsening diplopia of the left eye.  On VA general medical examination in February 2007, the VA examiner noted that the Veteran "used to be a full time pilot but he was terminated since his license for a commercial pilot was revoked by the FAA" due to, in part, his diplopia.  The Veteran also currently worked "full time in the computer field now and has not had to take any time off on sick leave in the past 12 months."  He reported on VA eye examination in February 2007 that, due to worsening of his service-connected diplopia, "he cannot work as a pilot, either military or commercial, with this disability, and is unable to work as a state trooper."  The Veteran also stated that "he feels he is legally blind" without wearing his glasses.  He has submitted documentation showing that his application to become a state trooper was denied because he failed to meet the relevant vision standards.  Although the Veteran reported "much improvement" in his diplopia following surgery in July 2008 when examined in January 2009, his diplopia remained "constant at far and at near [vision] only in the right visual field, starting at 25 degrees from the center to the right."  It appears that the Veteran has not been hospitalized for treatment of his service-connected diplopia in the left eye at any time during the pendency of this appeal.  In summary, the Board finds that the criteria for submission to the Director, C&P Service, for consideration of the assignment of an extraschedular rating for the Veteran's service-connected diplopia of the left eye pursuant to 38 C.F.R. § 3.321(b)(1) are met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


TDIU

The Veteran contends that his service-connected disabilities preclude him from securing or maintaining substantially gainful employment, entitling him to a TDIU.  He specifically contends that his service-connected diplopia of the left eye and vertigo permanently disqualified him from being an aircraft pilot and prevented him from obtaining post-service employment as a commercial airline pilot or as a state trooper.

Law and Regulations

The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.  38 U.S.C.A. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.

A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.  

Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration.  38 C.F.R. § 4.16(b).  The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance.  Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, C&P Service.  Bowling v. Principi, 15 Vet. App. 1 (2001).

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).

In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience.  38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16.

Factual Background

In addition to the evidence outlined above, a review of the Veteran's claims file also shows that, in a November 2006 letter, S.P.M. stated:

[The Veteran's service-connected diplopia of the left eye] has impacted not only his ability to fly, but to generate an income for himself and his family.  Just during the last two years, he has lost a fantastic opportunity to serve as a police officer/Trooper with the New York State Police.  Most recently, he had his Federal Aviation Administration [FAA] Commercial Pilot's License Medical prevented form being renewed, and his military flight status permanently taken away.  His ability to obtain employment in this occupation...is permanently terminated.  He can no longer obtain employment with the military, or as a scheduled commercial airline or cargo pilot, a highly specialized field and skill in which he was a valuable commodity, has come to an end [sic]."

(Emphasis in original.)

In a November 2006 memorandum date-stamped as received by VA in December 2007, J.D. informed VA that, due to a "continued decline of his diplopia/double vision and visual acuity...[the Veteran] is no longer permissible to serve as a pilot in the U.S. Air Force.  His medical condition prevents him from flying in any airframe as a crewmember in [the] U.S. Air Force.  As a result, [the Veteran] has permanently lost his career as an aviator and his flying status has been terminated."

In December 2006, the Veteran submitted a copy of a letter dated in March 2005 from the New York State Police, Director of Personnel, which advised him that his "vision in both your right and left eyes was worse than 20/100.  Our vision standards mandate that uncorrected vision be no worse than 20/100 in either eye uncorrected and corrected to 20/20."  He also was advised that "no exceptions are made in meeting our vision standards.  Accordingly, no further consideration will be given your application."

On VA general medical examination in February 2007, the Veteran's complaints included vertigo since 1998.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records, and noted that an magnetic resonance imaging (MRI) scan and computerized tomography (CT) scan of the Veteran's brain taken in 1998 had been normal.  The Veteran described his vertigo as intermittent "and serious vertiginous episodes occur approximately 3-4 times a year."  The VA examiner noted that the Veteran's commercial pilot's license had been revoked by the FAA due, in part, to his vertigo.  Neurological examination was completely negative and with "no neurological deficits."  The diagnoses included vertigo of unknown origin.

On VA audiology examination in February 2007, the Veteran's complaints included "a number of episodes of severe vertigo, most of them occurring in the morning" and lasting for 2-3 hours.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records, noting that there was "a history of episodic vertigo dating back to 2000" in the service treatment records.  An electronystagmogram (ENG) test was normal.  The VA clinician opined that it was at least as likely as not that the Veteran's episodes of vertigo occurred while he was on active service although the etiology of the vertigo was unknown.

In a June 2007 letter, S.P.M. stated that the Veteran experienced "severe dizziness when he gets his bouts of vertigo."  The Veteran had reported to S.P.M. that, due to his vertigo, he often was unable to commute to his job.  

In another June 2007 statement, G.B.H. stated that he had served with the Veteran.  He also stated:

When we flew together in support of the Global War on Terror in Africa, I saw how severe his condition with vertigo can be.  Luckily, we had enough crew members for someone else to fly those missions, but allow me to tell you what I witnessed.  [The Veteran] could not walk across our field expedient tent, only a few short feet, without holding on with two hands for stability from his shocking staggering.  His severe dizziness was something I had not experienced, and he needed help to get from one place to another.  [The Veteran's] ability to even walk to the bathroom was a large challenge.

(Emphasis in original).  G.B.H. also stated that the Veteran described his vertigo "as the room spinning, that it is chronic, and has ringing/tones that is associated with it."  (Emphasis in original).

In a July 2007 statement, the Veteran asserted that, as a result of his service-connected disabilities, " I have lost the ability to be employed in my occupation of aviation as a pilot."

On VA examination in February 2008, the Veteran's complaints included vertigo which "has been present intermittently since June 2001," occurred 5-6 times a year, lasted up to 2 weeks for 3-4 hours each day, and usually began in the mornings after awakening.  His vertigo episodes "cause significant imbalance and needing to hold on to things with spinning sensation and nausea also reported.  Once the symptoms resolve within three or four[] hours, he is able to function."  Cerebellar examination was intact.  There was no nystagmus or cerebellar dysfunction noted.  The assessment included episodic vertigo since 2001 with history and symptoms "most consistent with benign positional vertigo."

Analysis

The Board observes initially that the Veteran currently does not meet the schedular criteria for a TDIU.  See 38 C.F.R. § 4.16(a) (2012).  Service connection is in effect for diplopia due to left superior oblique muscle palsy, evaluated as 30 percent disabling effective August 20, 2006, vertigo, evaluated as 30 percent disabling effective August 20, 2006, tinnitus, evaluated as 10 percent disabling effective August 20, 2006, for multiple scars, each evaluated as zero percent disabling effective August 20, 2006, and for blisters on both feet, evaluated as zero percent disabling effective August 20, 2006.  The Veteran's combined disability evaluation for compensation is 60 percent effective August 20, 2006.  Id.

The Board finds that the criteria are met for referral to the Director, C&P Service, for consideration of extraschedular entitlement to a TDIU.  The Veteran contends that he is entitled to a TDIU.  He essentially contends that his service-connected diplopia of the left eye and vertigo forced him to quit working as an aircraft pilot because they disqualified him from flying.  He also contends that these disabilities prevented him from securing or maintaining gainful employment after they forced him to stop working as an aircraft pilot.

There is plausible evidence of record that the Veteran is unable to secure and follow a substantially gainful occupation solely as a result of his service-connected diplopia of the left eye and vertigo.  See 38 C.F.R. § 4.16(b).  The record evidence also does not contemplate the current severity of the Veteran's service-connected diplopia of the left eye (as discussed above) or vertigo and the impact of these disabilities on his employability.  The Veteran has contended throughout the pendency of this appeal that his service-connected diplopia of the left eye and vertigo forced him to quit working as a aircraft pilot because he was disqualified from flying when these disabilities worsened and his double vision could no longer be corrected to 20/20 or better.  He also has contended throughout the pendency of this appeal that both of these service-disabilities prevented him from securing or maintaining substantially gainful employment after he was disqualified from flying.  The record evidence supports these assertions.  (With regard to the impact of the Veteran's service-connected diplopia of the left eye on his employability, the Board notes parenthetically that this has been discussed previously in analyzing his entitlement to extraschedular consideration for a higher initial rating for this disability and will not be repeated here.)  With regard to the impact of the Veteran's service-connected vertigo on his employability, the Board notes that he currently is in receipt of the maximum 30 percent schedular rating available for this disability.  See 38 C.F.R. § 4.87, DC 6299-6204 (2012).  Although the evidence indicates that the Veteran's service-connected vertigo occurs only a few times a year, each occurrence appears to be seriously debilitating for the Veteran and causes "significant imbalance and needing to hold on to things with spinning sensation and nausea also reported" (as noted on VA examination in February 2008).  These episodes also last 3-4 hours a day for a period of 2 weeks at a time up to 6 times a year.

The Board finds that there is plausible evidence of record that the Veteran is unable to secure and follow a substantially gainful occupation solely as a result of his service-connected diplopia of the left eye and vertigo.  See 38 C.F.R. § 4.16(b); see also Bowling, 15 Vet. App. at 9-10 (finding that plausible evidence of unemployability warrants referral of TDIU claim to Director, C&P Service, for extraschedular consideration).  The Veteran has reported throughout the pendency of this appeal that he had been an aircraft pilot throughout 15 years of active service until the combination of worsening disability due to his service-connected diplopia of the left eye and vertigo disqualified him from flying in approximately November 2006.  The Veteran also has reported consistently that, since his service separation, these service-connected disabilities have prevented him from being a commercial airline or cargo jet pilot (because his pilot's license was suspended by the FAA due to declining vision and increased episodes of vertigo) and also kept him from working as a state trooper.  The record evidence supports these assertions regarding the impact of his service-connected diplopia of the left eye and vertigo on his employability.  For example, although the Veteran's vision remains correctable to 20/20 in both eyes, his uncorrected visual acuity (without eyeglasses or contact lenses) is extremely poor in both eyes and leaves him feeling "legally blind" when he is not wearing eyeglasses.  Despite undergoing surgery to correct his left superior oblique muscle palsy in 2008, the Veteran also continues to experience diplopia in the left eye.  And although his service-connected vertigo is episodic, these episodes have become both more frequent and more severe in intensity in recent years.

The Board acknowledges that, on VA general medical examination in February 2007, the Veteran reported that he was "working full time in the computer field now."  The February 2007 VA examiner also emphasized that the Veteran "used to be a full time pilot but he was terminated since his license for a commercial pilot was revoked by the FAA due to" both his service-connected diplopia of the left eye and vertigo.  This suggests that the Veteran may have other educational or occupational experiences that would permit him to pursue a different occupation than being an aircraft pilot.  It is not clear from a review of the record evidence what type of work "in the computer field" the Veteran was performing in 2007 or if he was able to continue performing this work after 2007, especially in light of his declining visual acuity and worsening double vision (or diplopia) and episodes of vertigo.  It is abundantly clear from a review of the record evidence, however, that the Veteran had extensive training as an aircraft pilot during active service and spent nearly his entire 15-year career in active service as a pilot or co-pilot of several types of aircraft and helicopters (as demonstrated by his DD Form 214 and available service treatment records).

In summary, the Veteran's current combined disability evaluation of 60 percent is insufficient to consider TDIU on a schedular basis.  38 C.F.R. § 4.16(a).  There is plausible record evidence demonstrating that the Veteran is precluded from securing or following a substantially gainful occupation consistent with his educational and occupational experiences due to his service-connected diplopia of the left eye and vertigo.  38 C.F.R. § 4.16(b); see Bowling, 15 Vet. App. at 9-10.  Accordingly, and because the Board is prohibited from assigning an extraschedular TDIU, the Board finds that a claim of entitlement to TDIU on an extraschedular basis must be referred to the Director, C&P Service, for consideration.


ORDER

Entitlement to service connection for bilateral astigmatism is denied.

Entitlement to an initial schedular rating greater than 30 percent for diplopia of the left eye due to left superior oblique muscle palsy is denied.

Referral to the Director, C&P Service, is warranted for consideration of entitlement to an initial rating greater than 30 percent for diplopia of the left eye on an extraschedular basis.

Referral to the Director, C&P Service, is warranted for consideration of entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis.





REMAND

The Board has found that referral to the Director, C&P Service, is warranted for consideration of extraschedular entitlement to a an initial rating greater than 30 percent for diplopia of the left eye and for a TDIU.  Thus, on remand, both of these claims should be submitted to the Director, C&P Service, for extraschedular consideration in the first instance.  See 38 C.F.R. § 4.16(b).  A copy of the Director's decisions on each of these claims should be included in the claims file.

As noted above, the Veteran has contended that he is unemployable by reason of his service-connected diplopia of the left eye and vertigo.  He also has contended that these disabilities interfered with his occupation as an aircraft pilot during service and essentially prevented him from finding post-service employment as a commercial airline or cargo jet pilot and a state trooper.  Service connection is in effect for diplopia due to left superior oblique muscle palsy, evaluated as 30 percent disabling effective August 20, 2006, vertigo, evaluated as 30 percent disabling effective August 20, 2006, tinnitus, evaluated as 10 percent disabling effective August 20, 2006, for multiple scars, each evaluated as zero percent disabling effective August 20, 2006, and for blisters on both feet, evaluated as zero percent disabling effective August 20, 2006.  The Veteran's combined disability evaluation for compensation is 60 percent effective August 20, 2006.

Accordingly, the case is REMANDED for the following action:

1.  Refer the Veteran's higher initial rating claim for diplopia of the left eye and his TDIU claim to the Director, C&P Service, for extraschedular consideration of each of these claims.  See 38 C.F.R. § 4.16(b).  A copy of the Director's decisions on each of these claims must be included in the claims file.

2.  Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims.  If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues.  An appropriate period of time should be allowed for response by the Veteran and his service representative.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs