Citation Nr: 18148807 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 09-31 922 DATE: November 8, 2018 ORDER Entitlement to a rating higher than 10 percent for left eye diplopia with visual field impairment is denied. Entitlement to a rating higher than 10 percent for residuals of a left eye fracture injury, including numbness and tingling, is denied. FINDINGS OF FACT 1. Residuals of the Veteran’s right orbital fracture have resulted in diplopia that is occasional and correctable. 2. Residuals of a left eye fracture injury, including numbness and tingling, has been manifested by impairment consistent with moderate, but not severe, incomplete paralysis of the 5th cranial nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating higher than10 percent for left eye diplopia with visual field impairment have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.79, Diagnostic Codes 6066, 6090. 2. The criteria for entitlement to a rating higher than 10 percent for residuals of a left eye fracture injury, including numbness and tingling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to December 2007. The Board remanded the Veteran’s claim in July 2012, April 2016 and October 2017, for further development. By a rating decision in August 2018, the RO granted a separate increased disability rating of 10 percent for left eye diplopia with visual field impairment, effective January 18, 2018. Because the increased rating does not represent a grant of the maximum benefits allowable, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). A claim of secondary service connection for headaches has been raised by the record (in a report of a January 2018 VA examination), but has not been adjudicated by the agency of original jurisdiction (AOJ). Accordingly, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). 1. Entitlement to a rating higher than 10 percent for left eye diplopia with visual field impairment 2. Entitlement to a rating higher than 10 percent for residuals of a left eye fracture injury, including numbness and tingling The Veteran is seeking higher disability ratings for his service-connected residuals of a left eye fracture injury that include numbness and twitching, and left eye diplopia with visual field impairment. He contends that his symptomatology is more severe than reflected by the criteria associated with his assigned disability ratings. The Veteran’s eye disability has been assigned two separate disability ratings of 10 percent. A 10 percent rating is currently in effect under 38 C.F.R. § 4.79, Diagnostic Code 6090-6066. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, the code indicates that diplopia (Diagnostic Code 6090) is rated based on impairment of central visual acuity in one eye under Diagnostic Code 6066. Ratings under Diagnostic Code 6090 are based on the degree of diplopia and the equivalent visual acuity. The ratings are applicable to only one eye. A rating cannot be assigned for both diplopia and decreased visual acuity or field of vision in the same eye. When diplopia is present, and there is also ratable impairment of visual acuity or field of vision of both eyes, the ratings for diplopia are to be applied to the poorer eye while the better eye is rated according to the best-corrected visual acuity or visual field. 38 C.F.R. §§ 4.78, 4.79. However, pursuant to 38 C.F.R. § 4.31, diplopia that is occasional or correctable with spectacles is evaluated at 0 percent disabling. 38 C.F.R. § 4.85, Note to Diagnostic Code 6090. Diplopia is measured using the Goldmann Perimeter Chart. The chart identifies four major quadrants (upward, downward, and two lateral), plus a central field (20 degrees or less). When the diplopia field extends beyond more than one quadrant or more than one range of degrees, the rating for diplopia is based on the quadrant and degree range that provide the highest rating. 38 C.F.R. § 4.78 (a)(2). When diplopia exists in two individual and separate areas of the same eye, the equivalent visual acuity is taken one step worse, but no worse than 5/200. 38 C.F.R. § 4.78 (a)(3). If the diplopia is from 31 to 40 degrees, it is rated (a) equivalent to 20/40 visual acuity if it is up; (b) equivalent to 20/70 visual acuity if it is lateral; and (c) equivalent to 20/200 visual acuity if it is down. If the diplopia is from 21 to 30 degrees, it is rated (a) equivalent to 20/70 visual acuity if it is up; (b) equivalent to 20/100 visual acuity if it is lateral; and (c) equivalent to 15/200 visual acuity if it is down. If the diplopia was central at 20 degrees, it is rated equivalent to visual acuity of 5/200. 38 C.F.R. § 4.79, Diagnostic Code 6090. Central visual acuity is evaluated based on corrected distant vision. 38 C.F.R. § 4.76 (b). A compensable rating is warranted when corrected visual acuity in the more impaired eye is 20/50 (or worse) and the less impaired eye is 20/40 (or worse). 38 C.F.R. § 4.79, Diagnostic Code 6066. Where a claimant reports visual acuity that is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation is used. 38 C.F.R. § 4.76 (b)(4). Under 38 C.F.R. § 4.75 (c), if visual impairment of only one eye is service-connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating visual impairment. 38 C.F.R. § 4.75 (c). In this case, the Veteran is only service-connected for a left eye disability. As noted, the Veteran is also in receipt of a separate 10 percent disability rating under 38 C.F.R. § 4.27, Diagnostic Code 8207 (diseases of the cranial nerves - paralysis of the seventh (facial) cranial nerve). Under Diagnostic Code 8207, a 10 percent rating is warranted for moderate incomplete paralysis. A 20 percent rating is warranted for severe incomplete paralysis. A 30 percent rating is warranted for complete paralysis. However, VA examination has shown that the affected cranial nerve is the fifth cranial nerve, as opposed to the seventh cranial nerve. Accordingly, the disability is more appropriately rated under Diagnostic Code 8205, for paralysis of the fifth (trigeminal) cranial nerve. That Diagnostic Code provides for a 50 percent rating for complete paralysis, a 30 percent rating for severe incomplete paralysis, and a 10 percent rating for moderate incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8205. The term “incomplete paralysis,” with respect to peripheral nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a. Words such as “severe” and “moderate” are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. As will be demonstrated below, the evidence shows that the Veteran’s eye disability consists primarily of upper facial of complaints of left periorbital numbness, eyelid twitching, and blurred and double vision in the left eye. The Board therefore concludes that the Diagnostic Codes used to rate the Veteran’s symptoms are most appropriate for the Veteran’s left eye disability. Turning to the relevant evidence of record, on VA eye examination in February 2008 the examiner indicated that the Veteran’s pupils were equal and reactive to light without afferent defect. His extraocular motility was full, and his intraocular pressures were within normal limits bilaterally. External examination showed the entire palperbral fissure to be slightly inferiorly displaced compared to the right. He demonstrated hypoesthesia of the zygomatic region. Slip lamp examination showed clear cornea and lens bilaterally. Funduscopic examination with indirect ophthalmoscopy showed a cup-to-disc ratio of 0.2 in each eye, with healthy discs, maculae, and vessels. His corrected visual acuity in the right eye was 20/15 at distance, and 20/20 at near. His best corrected visual acuity in the left eye was 20/20 at distance, and 20/20 at near. The examiner opined that the Veteran’s residual left periorbital numbness of left eye and the eyelid twitching were associated with his in-service injury. In a February 2011 private treatment note from a Dr. Maddox, the Veteran reported a worsening of his vision. Dr. Maddox noted evidence of an old trauma. The Veteran was provided a VA eye examination in January 2012. He indicated that within the last two years his vision had become increasingly blurry in the left eye. On examination, the Veteran’s intraocular pressure was 12 mmHg in the left eye. His pupils were equal, round, and reactive to light with no afferent papillary defect. His extraocular motility was full in both eyes. External and slit-lamp examination of his lids, conjuctivea, cornea, anterior chamber, and lens were normal. Dilated ophthalmoscopy revealed a healthy appearing optic nerve in both eyes. In his left retina, there was a small white, vertical choroidal scar just temporal to the optic nerve, which did not appear visually significant. The Veteran’s visual acuity without correction at distance was 20/20 in the right eye and 20/20 minus in the left eye. His corrected near vision was 20/40 in both eyes. On VA examination in September 2012, the examiner reported the Veteran’s uncorrected vision distance vision as 20/20 right and 20/25, with near vision as uncorrected 20/40 bilaterally and 20/20 corrected. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. No astigmatism or diplopia. The examiner noted the Veteran’s complaint of mild blurring vision in the left eye and indicated that the left retina appeared to have a small scar, deep to the retina, temporal to the optic nerve, which did not appear to be visually significant. There was no evidence of any subretinal hemorrhage or lens edema on examination. The examiner also reported that there was no scarring or disfigurement attributable to any eye condition. The examiner found no decrease in visual acuity or other visual impairment due to the identified chorioretinal scar or any eye condition. The visual field of left eye: superior was 32 degrees, nasal was 47 degrees, inferior was 57 degrees, temporal was 72 degrees. The muscle functions were normal. There were 2 small superficial linear skin scars at lateral brow region of left eye with decreased sensation at corresponding area with size of 45 x 20 mm. The scars were stable and did not limit the function of the eye. The small chorioretinal scar did not affect his vision. His slightly blurry vision was attributed to refractive error. On VA examination in May 2016, the Veteran reported that the vision in his left eye was less bright than the vision in his right eye and that the colors did not look the same through each eye. Color vision testing revealed a deficiency in his red-green color system. The examiner indicated that the Veteran had a neurologic eye condition and diagnosed him with acquired color vision deficiency of the left eye. The examiner indicated that it was not clear whether this was secondary to the Veteran’s service-connected eye injury and an opinion from a neuro-ophthalmologist was recommended. The examiner also found that the Veteran’s fundus of the left eye was abnormal and noted that there was a chorioretinal scar present between the optic nerve and the fovea. The examiner opined that this scar was more likely than not secondary to his eye injury in 1988. The Veteran’s uncorrected distance vision was 20/40 or better bilaterally, with uncorrected near vision as 20/50 in the right and 20/40 in the left, and 20/40 or better corrected. There was no visual field defect noted. In March 2017, the Veteran was examined by an ophthalmologist. The ophthalmologist noted that the Veteran had a history of blunt trauma to the left eye and currently experienced left eye blurriness. He indicated that the Veteran did not have, nor had he ever had, a diagnosed eye condition. On examination, the ophthalmologist found that the Veteran’s fundus was normal bilaterally and that he did not have a neurological eye condition. The section of the examination discussing neurologic eye conditions and paralysis of the 7th cranial nerve (facial, Bell’s palsy) was left blank. The ophthalmologist noted that while the Veteran had sustained an injury to the left eye during service, there was no documentation of record noting continuous care and treatment of the eye injury. Further, he determined that the examination did not reveal any active eye condition or nerve involvement. The ophthalmologist opined that the Veteran’s decreased and blurry vision in his left eye were the normal results of aging. Given the discrepancies in the May 2016 and March 2017 examination report findings, and the lack of a discussion concerning the severity of the paralysis of cranial nerves based on relative loss of innervation of facial muscles, the Board remanded for new VA examination. On VA ophthalmological examination in January 2018, the Veteran was diagnosed with mild medial rectus restriction with left eye numbness and twitching, as residuals of fracture the left malar complex, zygomaticarch, and orbit (lateral and inferior) to include subretinal heme and Berlins edema. No other additional diagnoses of the left eye condition were reported. Left eye corrected near vision of 20/50. Left eye corrected far vision was shown as 20/70. Right eye showed visual acuity was normal at 20/40. There was no difference in corrected visual acuity for distance and near vision. The examiner found no anatomical loss, light perception only, extremely poor vision or blindness of the left eye. Astigmatism was negative. The examiner found occasional diplopia (double vision, occurring1-4 times per week) due to the orbital trauma, status post repair, of the left eye. The diplopia was correctable with standard spectacle correction. Split lamp and external eye exam, and internal eye exam, were normal. The examiner reported no visual field defect, decrease in visual acuity or other visual impairment due to the neurologic eye condition. There were no incapacitating episodes pertaining to the left eye. On VA neurological examination in January 2018, the Veteran reported eye twitching while interacting at work with clients. The Veteran was diagnosed with trigeminal nerve disorder, status post fracture of the left malar complex, zygomatic arch, and orbit (lateral and inferior). Additionally, he was diagnosed with complex regional pain syndrome, type II. The examiner identified the nerve affected as cranial nerve V. Symptoms included moderate intermittent pain, moderate paresthesias and/or dysesthesias, as well as severe numbness, affecting the upper face, eye, and forehead. Muscle strength testing was within normal limits. There was mild increased salivation. Cranial nerve summary evaluation was reported for the cranial nerve V as incomplete, moderate. A scar was reported on the left upper eyelid which measured 1 x 0.1cm, which was neither unstable or painful. Based on the above evidence, the Board finds that entitlement to a disability evaluation in excess of 10 percent is not warranted under Diagnostic Codes 6090-6066. The left eye diplopia has been characterized as occasional and correctable and is thus non-compensable under the current rating schedule. Examination of the visual fields revealed no abnormalities, bilaterally. Left eye corrected far vision, at worst, was shown as 20/70, with normal right eye shows visual acuity. 38 C.F.R. § 4.79, Diagnostic Codes 6090-6066. Next, concerning a higher rating for cranial nerve impairment, the Board finds that the weight of the evidence is against a finding that a rating higher than 10 percent for the Veteran’s eye disability is warranted because the evidence of record does not reflect that there have been symptoms more nearly approximating severe incomplete paralysis. Although the Veteran complained of numbness and eyelid twitching, muscle strength testing of the cranial nerves was generally normal and there is no indication that the Veteran is unable to perform movements associated with this nerve. Significantly, the VA examiner in January 2018 characterized the severity of impairment of the 5th cranial nerve as consistent with moderate incomplete paralysis, and the examiner’s opinion regarding the degree of impairment is uncontroverted. Review of the evidence shows that the level of impairment has been fairly consistent throughout the appeal period. Therefore, the Board finds that a 10 percent rating is warranted under Code 8205. A 30 percent rating under Code 8205 is not warranted because the Veteran has not demonstrated severe incomplete paralysis of the 5th cranial nerve. Specifically, the impairment shown is mostly sensory (with no motor loss or loss of strength demonstrated). See 38 C.F.R. § 4.123. While the records show that the Veteran experiences increased mild salivation, there is no indication that it interferes with mouth function or speech. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran’s symptoms did not more nearly approximate any of those in the criteria for ratings higher than the separate 10 percent disability ratings currently assigned under Diagnostic Codes 6090-6066 and 8205. As the preponderance of the evidence is against a finding of a higher ratings, the benefit of the doubt doctrine is not for application in this regard. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Board has considered all potentially applicable diagnostic codes for evaluating the Veteran’s eye disability as a basis for a higher schedule rating; however, the Board finds no basis upon which to assign a higher rating under any alternate diagnostic code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). This does not suggest that the Veteran does not have problems (he clearly does). The only question is the degree based on the objective evidence. (Continued on the next page)   Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence does not show, nor does the Veteran claim, that he is unemployable due to left eye disability. In fact, the evidence shows that the Veteran is gainfully employed. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana