Citation Nr: 1333118	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  09-49 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for diplopia.


REPRESENTATION

Veteran represented by:	Blinded Veterans Association


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel


INTRODUCTION

The Veteran had active duty service from July 1991 to March 1992 and from December 1993 to March 2008.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part, granted the Veteran's claim for service connection for diplopia and assigned an initial 10 percent rating.

Jurisdiction over this matter was transferred to the St. Petersburg, Florida RO in approximately July 2009 at the Veteran's request.

In March 2011, the Veteran testified before the undersigned Veterans Law Judge at a RO (Videoconference) hearing.  A hearing transcript has been associated with the claims file.

In June 2011 and in December 2012, the Board remanded the instant matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development.  

In August 2013, the Veteran waived his right to have VA wait a minimum of 30 days before certifying his appeal to the Board.

The Board notes that in March 2009, the Veteran appointed the Disabled American Veterans as his accredited representative via a properly completed Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22).  However, in December 2012, the Veteran submitted a new VA Form 21-22 appointing the Blinded Veterans Association as his accredited representative.  The Board recognizes this change in representation.  

A review of the paperless, electronic (Virtual VA) claims processing system reveals VA treatment records dated through April 2013; such records were considered in the August 2013 supplemental statement of the case (SSOC).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim decided herein have been accomplished. 

2.  Since the date of the Veteran's claim, the Veteran's service-connected diplopia manifested as diplopia in the central 20 degrees of vision and right eye visual acuity of no worse than 20/40.


CONCLUSION OF LAW

The criteria for an initial rating of 30 percent for diplopia are met.  38 U.S.C.A.       §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10 (2012), 4.84a, Diagnostic Codes 6074, 6090 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

The Court held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), that the VA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include (1) the veteran's status; (2) the existence of a disability; (3) a connection between the veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability.  The Court held that, upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim, and to provide the veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id. 

In the instant case, the Veteran's claim arises from an appeal of the initial rating following the grant of service connection.  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).  Therefore, no further notice is needed under VCAA.

The Board also concludes VA's duty to assist has been satisfied.  The evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, various private treatment records and the VA examination reports.  A February 2010 response from the Social Security Administration (SSA) indicates that the Veteran did not receive benefits.  In addition, the Veteran was provided with appropriate VA examinations in August 2008, January 2012 and April 2013.  The Board finds that these VA examinations are adequate as the medical findings are stated in terms of conforming to the applicable criteria.  Massey v. Brown, 7 Vet. App. 204 (1994). 

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected diplopia since he was last examined.  See 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  VA examination reports are thorough and supported by VA outpatient treatment records.  The examinations in this case are adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).

Additionally, the Board finds there has been substantial compliance with its June 2011 and December 2012 remand directives.  The Board notes that the Court has found that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  The record indicates that the AMC obtained the Veteran's updated VA treatment records, scheduled the Veteran for a VA examination, which he attended and considered whether a separate rating was warranted for a traumatic brain injury.  Although the AMC was directed to associate the Goldmann chart from the Veteran's August 2008 VA examination with the claims file in the Board's December 2012 remand, such testing results are not contained in the claims file nor has a finding of unavailability been made.  However, as the Board has found the Veteran's subjective reports of constant diplopia to be credible and is accepting subsequent testing results as applicable throughout the appellate period, it is not necessary to obtain the Goldmann testing results from the August 2008 VA examination.   Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the claim. 

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant, 23 Vet. App. at 488.

Here, during the March 2011 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal.  Also, information was solicited regarding the Veteran's vision symptoms.  The undersigned suggested that the Veteran could obtain an evaluation from his private provider detailing the severity of his diplopia.  Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  Id. at 497.  As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II. Increased Rating

A.  Applicable Statutes and Regulations 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

The Court has noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson, 12 Vet. App. at 126.

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances.  38 C.F.R. § 4.21.

The schedule for rating disabilities of the eye was amended effective December 10, 2008; however, such amendments are only applicable to claims filed on or after December 10, 2008.  73 Fed. Reg. 66543 (November 10, 2008); see 38 C.F.R.         § 4.75-4.84(a).  In this case, the appeal stems from a claim filed in April 2008; as the claim for increase predates that amended rating criteria, only the former rating criteria will be applied. 

Under the criteria in effect prior to December 10, 2008, under 38 C.F.R. § 4.84a, 
the impairment of central visual acuity is evaluated from zero (0) to 100 percent under former Diagnostic Codes 6061 through 6079.  Impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity.  38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079.  A rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses.   38 C.F.R. § 4.75.  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. 

Diplopia is double vision.  Dean v. Brown, 8 Vet. App. 449, 451 (1995).  Diplopia, due to limited muscle function, was to be rated under Diagnostic Code 6090.  Note 2 to Diagnostic Code 6090 provided that ratings for diplopia will not be applied for both diplopia and decreased visual acuity or field of vision in the same eye.  In addition, Note 2 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.  

Diplopia is measured using the Goldmann Perimeter Chart.  38 C.F.R. § 4.77 (Figure 2) (2008).  The chart identifies four major quadrants (upward, downward, and two lateral), plus a central field (20 degrees or less).  If diplopia exists within the central 20 degrees of vision, the equivalent visual acuity is 5/200.   Diplopia from 21 degrees to 30 degrees is the equivalent of visual acuity of 15/200 when down, 20/100 when lateral, and 20/70 when up.  Diplopia from 31 degrees to 40 degrees is the equivalent of 20/200 visual acuity when down, 20/70 when lateral, and 20/40 when up.   38 C.F.R. § 4.84a, Diagnostic Code 6090 (2008). 

When the diplopia field extends beyond more than one quadrant or more than one range of degrees, the evaluation for diplopia will be based on the quadrant and degree range that provide the highest evaluation.   38 C.F.R. § 4.84a, Diagnostic Code 6090, Note 3. 

When diplopia exists in two individual and separate areas of the same eye, the equivalent visual acuity will be taken one step worse, but no worse than 5/200.   38 C.F.R. § 4.84a, Diagnostic Codes 6090, Note 4. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

B.  Diplopia

The Veteran filed his claim for service connection for diplopia in April 2008.  He contends that he is entitled to a 30 or 40 percent rating for the entire appellate period due to the level of impairment in his central vision.  In addition, he further contends that Goldmann Perimeter testing was not conducted during his August 2008 examination.

An August 2008 VA examination report reflects the Veteran's complaints of constant diplopia, that he was able to momentarily make such images one with effort, that he had been told that no further surgical procedures would be helpful in treating this condition and that his last eye doctor wanted him to wear an eye patch.  These images were described as two separate images that floated together and apart.

During a March 2011 hearing, the Veteran testified that his diplopia was not correctable with glasses and had not improved with surgery.  He described seeing a primary image as well as a secondary image that floated or shifted.  He stated that he experienced double vision in all visual fields.  He detailed the impact on his diplopia on his daily life, including the difficulties he experienced reading and driving.

A July 2011 private treatment note indicated that the Veteran's right eye visual acuity was found to be 20/25 and his left eye visual acuity was found to be 20/60.  Goldmann visual field testing was conducted bilaterally, with the results in diagram format associated with the examination report, and indicated that diplopia was present in the center gaze.  The provider noted that there was complete intractable double vision throughout the Veteran's central 20 degrees confirmed with Esterman binocular visual fields.  

A January 2012 VA Disability Benefits Questionnaire (DBQ) found the Veteran corrected distance visual acuity to be 20/40 or better and his corrected near visual acuity to be 20/40 or better, both bilaterally.  Diplopia was noted to be present in all fields of vision, including central 20 degrees.

An April 2013 VA examination report reflects the Veteran's complaints of diplopia all the time and in all of fields of vision but that it was mainly horizontal.  The Veteran's far corrected vision was found to be 20/40 or better bilaterally and near corrected vision was found to be 20/40 or better bilaterally.  Diplopia was found to be present in all fields of vision.  Goldmann visual field testing was conducted bilaterally, with the results in diagram format associated with the examination report, and indicated that diplopia was present in all fields of vision, including central 20 degrees.

As the Veteran is service-connected for diplopia of both eyes, the poorer eye is evaluated under Diagnostic Code 6090 for purposes of determining visual acuity.  38 C.F.R. § 4.84a, Diagnostic Code 6090, Note 2 (2008).  Goldmann Perimeter Chart testing conducted in all examinations, including in January 2012 and April 2013, as well as a July 2011 private evaluation, indicated that the Veteran had diplopia in the central 20 degrees of vision.  The Board notes that the Veteran has also credibly stated that he suffered from diplopia in all fields of vision.  Under this diagnostic code, the left (poorer) eye vision is considered to be 5/200. 

As noted above, the Veteran's right eye vision was found to be no worse than 20/40. The correct percentage evaluation is then obtained using Table V, 38 C.F.R. § 4.84a (2008), and provides that a 30 percent rating is assignable under Diagnostic Code 6074 where visual acuity in one eye is 5/200 and 20/40 in other eye.  In light of the objective evidence of diplopia in the central 20 degrees of vision and right eye vision of no worse than 20/40, a 30 percent rating is warranted under Diagnostic Code 6074 (2008).  With the application of the visual acuity findings in this case, the next higher award is not warranted.  

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected diplopia; however, the Board finds that his symptomatology has been stable throughout the appeal.  Therefore, assigning staged ratings for such disability is not warranted.

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.   Id. 

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected diplopia with the established criteria found in the rating schedule.  The Board finds that the Veteran's diplopia symptomatology is fully addressed by the rating criteria under which such disability is rated.  In this regard, all of the Veteran's vision symptomatology is contemplated by the rating criteria, to include those symptoms which are not specifically enumerated.  There are no additional symptoms of his diplopia that are not addressed by the rating schedule.  Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

Additionally, the Board notes that the Court held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every claim for a higher rating includes a claim for a total rating based on individual unemployability (TDIU) where a Veteran claims that his service-connected disability prevents him from working.  The record establishes that the Veteran was employed during the appellate period and he reported working as a physical security manager in July 2009.  As such, the Board finds that Rice is not applicable to the current appeal.  Thus, any further discussion of an issue of entitlement to TDIU is not necessary.  See Rice, supra.

For all the foregoing reasons, the Board finds that an initial rating of 30 percent for diplopia, but no higher, is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R.             § 3.102.  


ORDER

An initial rating of 30 percent for diplopia is granted, subject to the laws and regulations governing payment of monetary benefits.




____________________________________________
MARJORIE A. AUER 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs