Citation Nr: 18147183 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 02-21 596 DATE: November 2, 2018 ORDER An initial extraschedular rating of 10 percent for symptoms and impairment associated with bilateral dysmorphopsia is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Department of Veterans Affairs (VA) Director of Compensation and Pension Service denied an extraschedular rating for symptoms and impairment associated with service-connected bilateral dysmorphopsia. 2. The bilateral dysmorphopsia causes subjective visual distortions of the far temporal portions of the Veteran’s visual field. 3. The preponderance of the evidence is against a finding that the Veteran is unable to obtain or maintain any form of substantially gainful employment due solely to his service-connected disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 10 percent extraschedular rating for subjective visual distortions of the far temporal portions of the visual field associated with bilateral dysmorphopsia, but no higher, have been approximated for the entire rating period. 38 U.S.C. § 1155; 38 C.F.R. § 3.321 (b). 2. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to December 1982. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2001 rating decision. The Veteran testified before the undersigned in a July 2003 Board hearing; the transcript of the hearing is of record. In January 2006, the Board denied the Veteran’s request for an initial compensable disability rating for bilateral dysmorphopsia. The Veteran appealed the decision to the United Stated Court of Appeals for Veterans Claims (Court). In May 2008 the Court vacated the Board’s January 2006 decision and remanded the matter to the Board. Thereafter and after additional development, in November 2010, the Board determined that the schedular criterial for an initial compensable rating had not been met. However, in that decision the Board added the issue of extraschedular rating for bilateral dysmorphopsia and remanded the issue for further development. The extraschedular issue was again remanded by the Board for additional development by agency of original jurisdiction (AOJ), most recently in March 2018. 1. Entitlement to an extraschedular disability rating for bilateral dysmorphopsia At issue is whether the Veteran is entitled to an extraschedular disability rating. In November 2010 the Board denied the Veteran a compensable schedular rating for his bilateral dysmorphopsia. The noncompensable rating was based upon analogy rating Diagnostic Code to 6079, impairment of visual acuity. See 38 C.F.R. § 4.75, 4.76, 4.84a. The Veteran contends that his bilateral dysmorphopsia does not affect his visual acuity. The Veteran’s argument implied that application of the Schedule for Rating Disabilities is impracticable because his eye disorder was an exceptional case. 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the AOJ including the regional office (RO) or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. 3.321 (b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). When the rating schedule is inadequate to evaluate a claimant’s disability picture, and that picture has 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, Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. See. e.g., Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom., Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). If an extraschedular disability rating is denied in the first instance, then the matter is returned to the Board for reevaluation based on the first two criteria. The Director, Compensation Service has denied an extraschedular disability rating in the first instance, and the Board may now adjudicate the Veteran’s claim for an extraschedular disability rating. As noted above, the Veteran had been denied a compensable schedular rating for visual impairment because his visual acuity did not rise to level set forth in VA’s Schedule for Rating Disabilities for a compensable rating. This was born out in the Veteran’s numerous VA eye examinations, private treatment records, and VA treatment records. However, evidence in the record indicates that the Veteran’s bilateral dysmorphopsia caused some visual impairment not contemplated by 38 C.F.R. § 4.79, Schedule of Ratings – Eye. Initially, the Board notes that the evidence in the record consistently indicated that since the Veteran’s diagnosis of dysmorphopsia in 1981, the Veteran’s visual impairment had not changed or worsened. Therefore, although a July 1997 private physician’s letter is outside the appellate period, the private physician recorded Veteran’s clear description of his impairment. The Veteran stated that objects would become bowed or bent, and that he had difficulty judging distances. The Veteran stated that he would put a coffee cup down on a table and would miss the table because he thought the table was further away than he thought. In May 2001, the Veteran underwent a VA eye examination. Under the diagnosis section, the examiner noted a history of bilateral dysmorphopsia, but there was nothing on the eye examination or previous examination which could explain the etiology. The examiner indicated that there was no way to know if the dysmorphopsia was related to sarcoid. Prior MRIs and computerized tomographies (CTs) were all negative. Parenthetically, the Board notes that service connection has also been established for pulmonary sarcoidosis. The Veteran was seen by VA in March 2004. At that time, the Veteran related that he had previously been told that his current problems were not an eye problem and that he might need a brain biopsy. However, an MRI from the month before was unremarkable except for a small venous angioma without intracranial hemorrhage (acute or in the past). The examiner noted that the Veteran had previously exhibited normal visual acuity. The Veteran reported that he had problems with his peripheral vision when he was driving and was considering moving closer to work and using public transportation. In addition, there was no role for any clear medical intervention since the etiology was unknown. Despite no indication that the Veteran had a visual disability, the Veteran was told to notify his State’s driving authority regarding his visual problems and to abide by the driving laws in that regard. In April 2004, the Veteran was afforded another VA examination. The examiner noted that the Veteran had a history of sarcoidosis with dysmorphopsia since diagnosed in 1981, but the dysmorphopsia had remained unchanged. It was noted that it might be prudent for the Veteran to have a neuro-ophthalmologic consultation. However, it was noted that the dysmorphopsia had been stable since 1981. In August 2005, an addendum VA medical opinion was obtained. The examiner opined that when the Veteran was examined in April 2004, Additionally, the Veteran’s other testing to include MRI, electroencephalogram (EEG), and spinal taps had been normal. The examiner opined that the Veteran’s examinations were within normal limits for age. There were no objective findings to substantiate his complaints. In November 2005, the Veteran’s private doctor sent a letter that stated that the Veteran had metamorphopsia or a change in the shape of objects. The private physician recommended that the Veteran not work around fast-moving machinery or on ladders. The private doctor noted that given the Veteran’s previous job as a custodian, he did quite well with those activities. In July 2010, the Veteran underwent another eye examination. The examiner opined that the Veteran did not have an ocular or visual disability based on any objective test measurement. The examiner reasoned that the Veteran’s symptoms of bilateral dysmorphopsia are purely subjective and cannot be quantified on any available objective tests. Thus, the severity of the Veteran’s industrial impairment cannot be accurately stated without resort to mere speculation. The examiner further noted that although the Veteran’s symptoms were purely subjective in nature, that did not mean they do not necessarily exist. The examiner opined that if the Veteran felt the longstanding symptoms did not allow him to safely operate or work in an industrial environment, then at this point the benefit of the doubt should go to the Veteran and provide for the safety of himself and others. In January 2017, the Veteran underwent another VA examination. The examiner stated that after a review of the evidence the examiner did not find a diagnosis of an eye condition. The examiner noted that all eye examinations had been essentially normal. However, the Veteran had subjective visual disturbances which had not changed since 1981. The examiner stated the Veteran’s eye condition did not impact his ability to work. In July 2003, the Veteran testified before the undersigned at a videoconference hearing from the RO. At that time, the Veteran stated that his eye disability was inoperable. The Veteran indicated that due to his impaired vision, he had been in many car accidents. He stated that he experienced visual distortion and problems with peripheral vision. He related that he had depth perception issues. He reported that he had had to take time off work due to the stress that his visual disability caused him. In April 2004, the Veteran stated that his eye disorder caused him to be demoted. The Veteran further indicated that he had several negative work-related actions taken against him, all of which were due to his eye disorder. In January 2012 statement, the Veteran indicated that his job was dangerous. He stated that it was only a matter of time before he lost a finger, limb, or had a major injury or loss of life because of his eye problem. A February 2012 emergency discharge report indicated that the Veteran had a back injury related to work. The Veteran stated it was due to his eye disorder. The Board finds that the Veteran is entitled to an extraschedular disability rating for his dysmorphopsia. The Board finds that the Veteran’s dysmorphopsia is not contemplated by the rating schedule. VA examinations indicated the Veteran’s disorder could not be measured by a visual examination and diseases of the eye under 38 C.F.R. § 4.79 are all rated based of testing of visual acuity. Turning to the second step of the extraschedular analysis, the Board next finds that the evidence is at least in equipoise on the question of whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” “A governing norm” is a finding that the case presents such an unusual disability picture “with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321 (b)(1). In this particular case, while the evidence supports a finding of some interference with this Veteran’s employment, the interference in this case is limited to some degree of inability to work with fast-moving machines and use of ladders. Further, the evidence indicates that the Veteran had some restrictions to drive. As the July 2010 VA examiner noted such impediments would cause a safety issue with an industrial environment. The Board finds that, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating of 10 percent, but no greater than 10 percent, for symptoms and impairment associated with dysmorphopsia, for the entire period of the initial rating appeal. The dysmorphopsia causes subjective visual impairments of objects bending and unable to determine distance. In assigning the extraschedular rating of 10 percent in this case, the Board notes and has applied VA’s general rating principles that urge recognition of the actual additional impairment caused by a service-connected disability. See 38 C.F.R. § 4.21(rating regulations do not require that all cases show all findings specified by the Rating Schedule, but it is important to show the disability and to coordinate rating with impairment of function). The Board notes that the symptoms of the Veteran’s dysmorphopsia has been consistently characterized as a purely subjective. Nearly all of the disability ratings described in the Rating Schedule contain some quantifiable measurements to rate a particular disability. Ideally, the Veteran’s dysmorphopsia would be rated upon loss of visual acuity, however as stated above the Veteran had a visual acuity that is noncompensable despite the Board’s recognition for an extraschedular compensable rating for his dysmorphopsia. Thus, in determining the Veteran’s 10 percent extraschedular rating, the Board applied general principles implied in the Rating Schedule which rate purely subjective disabilities. While not directly analogous, the General Guide for Mental Disorders is a useful tool in determining a rating for a subjective disability. C.F.R. § 4.130 rates mental disabilities based upon occupational and social functioning. For example, a 10 percent rating is given for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. A 30 percent rating is provided for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The rating scheme for arthritis in C.F.R. § 4.71a also provides a useful analogy. Under Diagnostic Code 5003 arthritis, a veteran that has “satisfactory evidence of painful motion” will be provide a 10 percent rating for any limitation of motion even though the limitation does not arise to a compensable level. Thus, the Rating Schedule does allow for a 10 percent rating, but no higher, for a disability that normally would not be compensable but for evidence of arthritis, some limitation of motion, and, albeit observable, subjective symptom of pain. The disability most analogous to the Veteran’s disability is tinnitus. Tinnitus is rated 10 percent. C.F.R. § 4.87 (Schedule Ratings—Ears) provides notes concerning the rating of tinnitus. Pertinent to this case, Note 2 states that tinnitus must only be assigned a single evaluation for current tinnitus, whether one ear, both ears, or in the head; and Note 3 states the rater must not evaluate objective tinnitus (in which the sound is audible to other people and has a definable cause that may or may not be pathological) under this diagnostic code but evaluate it as part of any underlying condition causing it. Practically speaking, Note 3 defines tinnitus as a purely subjective disability with no objective way to measure the disability. If a sound was measurable, then Note 3 directs the rater to rate the disability under a different diagnostic code. Note 2 limits the purely subjective tinnitus to a single rating despite any evidence the disability affects both ears and/or the head. Applying these principles to the Veteran’s dysmorphopsia, the Board finds that a 10 percent rating but no higher is appropriate. The medical evidence indicates that the Veteran’s disability is purely subjective and cannot be measured. The disability caused the Veteran to avoid fast-moving machinery, ladders, and limited his ability to drive. When a disability cannot be objectively measured, the Rating Schedule provides for a 10 percent disability rating as with tinnitus. When there is significant evidence of a subjective symptom, but symptom does not arise to a compensable measurable rating then the rating is restricted to 10 percent such as with arthritis. The Veteran’s occupational and social impairment can best be described as mild with decrease in efficiency. The Veteran’s disability was stable, since 1981 and was able to perform his duties in his occupation for 22 years. The Board contemplated a 30 percent disability rating provided by the General Rating Formula for Mental Disorders. However, purely subjective disorders which allow for a higher rating with evidence of measurable limitations, such as arthritis, are limited to 10 percent. Further, the February 2017 examiner found that the Veteran’s disability did not have any functional impairment due to the disability, and as noted, the evidence is clear, the Veteran’s disability has been stable and did not increase in severity since 1981. Therefore, the Board finds that the Veteran’s symptoms only caused mild occupational impairment. The Board also considered separate extraschedular ratings, one for each eye. However, tinnitus is provided only a single rating despite any indication that the disability affects both ears. Therefore, as both disabilities are based upon subjective complaints, the Board finds a single rating is appropriate. The Veteran provided evidence that he was reassigned to a different pay structure and that he was denied advancement. The Veteran stated that he had adverse actions taken against him due to his eyesight. The evidence in the record demonstrates that the negative actions taken against him were due to other issues not related to the Veteran’s disability. Specifically, the Veteran was suspended due to being AWOL and insubordination. The Board takes note that the record referenced records related to his work performance, such EEOC actions and information from the Veteran’s direct supervisor. VA attempted to obtain these records, however required authorization from the Veteran to obtain them. In January 2018, the VA sent the letter requesting authorization for his employment records to include any EEOC complaints of adverse action(s) due to poor performance or in the alternative provide VA with these records. The Veteran responded in January 2018 that he did not have access to any of his employment records. The duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence, such as authorization for records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, although the Veteran contends that his job performance was significantly hampered by his disability, the evidence does not demonstrate a higher rating due to his disability. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 10 percent extraschedular rating for symptoms and impairment (characterized as subjective visual distortions of the far temporal portions of his visual field) associated with the bilateral dysmorphopsia, but no higher, have been approximated for the entire rating period. 38 U.S.C. § 1155; 38 C.F.R. § 3.321 (b). The 10 percent extraschedular rating under 38 C.F.R. § 3.321 (b) is to be assigned in addition to, and separately rated apart from, any schedular rating percentage assigned for bilateral dysmorphopsia under 38 C.F.R. § 4.97. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate determination of whether a veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). During the rating period on appeal, the Veteran’s service-connected disabilities are pulmonary sarcoidosis (rated 10 percent disabling), a non-compensable bilateral dysmorphopsia, and a herein granted 10 percent extraschedular rating for bilateral dysmorphopsia with a combined disability rating of 20 percent. Thus, the Veteran does not meet the TDIU criteria pursuant to 38 C.F.R. § 4.16 (a). The Board remanded the TDIU claim in March 2018 to the AOJ partly for referral to the Director of Compensation Service for a determination on whether the Veteran was entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). In a November 2016 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran said that he became too disabled to work in February 2012, when he last worked full-time. He said his bilateral dysmorphopsia prevented him from securing or following any substantially gainful occupation. He said he worked as an electronic technician on a full-time basis from 1990 to 2012 at the United States Postal Service. He said he lost many 30 months due to illness. He reported that he completed four years of college. He stated that his service-connected disabilities precluded him from gaining or maintaining meaning full employment, either sedentary or physical. The Veteran’s employer indicated that the Veteran worked from July 1990 to December 2012. The employer noted the reason for termination of employment was retirement. The Veteran contends that his eye disability caused him to fall at work and become injured. The Veteran’s private treatment records indicate that in February 2012 he fell from a machine and herniated his disc. A May 2012 letter from the Veteran’s private doctor stated that the Veteran had 20/20 vision. The private physician stated that the Veteran’s complaints of his vision for the thirty years had not changed and was stable. The private physician suggest that the Veteran avoid working around fast-moving machinery or ladders due to his vision issue. In a June 2018 opinion, VBA’s Director of Compensation determined that a review of the evidentiary record, with the application of reasonable doubt, does not satisfactorily demonstrate that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities, and therefore, a grant of extraschedular entitlement to TDIU is not warranted. Following a careful review of the record, the Board finds that the preponderance of the evidence is against the claim for a TDIU, including on an extraschedular basis. The Board finds that the preponderance of the evidence does not show that his service-connected pulmonary sarcoidosis and bilateral dysmorphopsia have rendered him unable to secure and follow a substantially gainful occupation. Information from the SSA indicates that the Veteran does not receive SSA benefits based on a disability. He successfully held the same job for many years, until his retirement. A recent VA examination February 2017, show that the Veteran’s eye condition caused no functional impact on his ability to work. While treatment records do show some occupational impairment from pulmonary sarcoidosis and bilateral dysmorphopsia, noting the Veteran should not work with fast-moving machines or ladders and such records document that the Veteran has consistently reported subjective complaints of visual distortions of the far temporal portions of his visual field, evidence demonstrates that the Veteran service-connected disabilities do not preclude the Veteran from working in other professions that do not require the Veteran to work with fast-moving machines or ladders. Notably, multiple ophthalmological and neurological testing over many years have been entirely within normal limits. The most probative evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The claim for entitlement to a TDIU is denied. (Continued on the next page)   In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel