Citation Nr: 18153060 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-43 526 DATE: November 28, 2018 ORDER An initial 30 percent rating for diplopia, residuals of left intranuclear ophthalmoplegia (to include resolved facial paralysis), prior to January 15, 2016, is granted. A 40 percent rating for diplopia, residuals of left intranuclear ophthalmoplegia (to include resolved facial paralysis), from January 15, 2016, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REFERRED The issue of service connection for ataxia and gait imbalance secondary to brain stem bleed is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s eye disability manifested in diplopia in the central field (20 degrees or less). 2. Prior to January 15, 2016, the Veteran’s eye disability manifested in visual acuity no worse than 20/40 or better bilaterally. From January 15, 2016, the Veteran’s eye disability manifested in visual acuity no worse than 20/50 bilaterally. CONCLUSIONS OF LAW 1. The criteria for an initial rating 30 percent for diplopia, residuals of left intranuclear ophthalmoplegia (to include resolved facial paralysis), prior to January 15, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.75-4.79, Diagnostic Code 6090-6066. 2. The criteria for a 40 percent rating for diplopia, residuals of left intranuclear ophthalmoplegia (to include resolved facial paralysis), from January 15, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.16, 4.75-4.79, Diagnostic Code 6090-6066. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from August 1983 to September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) which granted service connection for diplopia, left eye, residuals of intranuclear ophthalmoplegia and assigned a 10 percent rating effective April 6, 2012. In an October 2017 rating decision, the Regional Office (RO) awarded an increased 30 percent rating for diplopia, residuals of left intranuclear ophthalmoplegia effective January 15, 2016. As this was less than the maximum benefit allowed under VA law and regulations, the claim remained on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to an initial rating in excess of 10 percent for diplopia, residuals of left intranuclear ophthalmoplegia (to include resolved facial paralysis) prior to January 15, 2016. 2. Entitlement to an initial rating in excess of 30 percent for diplopia, residuals of left intranuclear ophthalmoplegia (to include resolved facial paralysis) from January 15, 2015. The Veteran seeks higher initial ratings for diplopia, residuals of left intranuclear ophthalmoplegia (to include resolved facial paralysis), rated 10 percent prior to January 15, 2016 and 30 percent thereafter. The appeal period begins on April 6, 2012; the effective date of service connection. For the reasons that follow, the Board finds that a 30 percent rating is warranted prior to January 15, 2016 and a 40 percent rating is warranted thereafter. Legal Framework The service-connected eye disability is evaluated pursuant to 38 C.F.R. § 4.79, Diagnostic Code (DC) 6090-6066. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, DC 6090-6066 indicates the eye disability was rated as diplopia based on an analogous amount of impairment of visual acuity. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). Evaluation of impairment of muscle function is based on the degree of diplopia. The examiner must record test results for the four major quadrants (upward, downward, and right and left lateral) and the central field (20 degrees or less). 38 C.F.R. § 4.78(a). Diplopia in the central field (20 degrees or less) of any of the four major quadrants equates to 5/200 visual acuity. In accordance with 38 C.F.R. § 4.31, diplopia that is occasional or that is correctable with spectacles is evaluated at 0 percent. An evaluation for diplopia will be assigned to only one eye. When a claimant has both diplopia, and decreased visual acuity or visual field defect, the rater will assign a level of corrected visual acuity for the poorer eye (or the affected eye, if disability of only one eye is service-connected) that is: one step poorer than it would otherwise warrant if the evaluation for diplopia under DC 6090 is 20/70 or 20/100; two steps poorer if the evaluation under DC 6090 is 20/200 or 15/200; or three steps poorer if the evaluation under DC 6090 is 5/200. This adjusted level of corrected visual acuity cannot exceed a level of 5/200. The rater will apply the adjusted visual acuity for the poorer eye and the corrected visual acuity for the better eye to DCs 6065-66 in the table of Impairment of Central Visual Acuity to determine the rating. 38 C.F.R. § 4.78(b)(1). When diplopia extends beyond more than one quadrant or range of degrees, evaluate diplopia based on the quadrant and degree range that provides the highest evaluation. 38 C.F.R. § 4.78(b)(2). When diplopia exists in two separate areas of the same eye, increase the equivalent visual acuity under DC 6090 to the next poorer level of visual acuity, not to exceed 5/200. 38 C.F.R. § 4.78(b)(3). During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the revised criteria, the service-connected eye disability would be evaluated pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formal for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Regarding the evaluation of visual impairment, the revised criteria eliminated the required use of a Goldmann chart for reporting impairment of visual field or muscle function; there were otherwise no substantive changes to how visual impairment is evaluated. Thus, as pertinent to this appeal, the primary difference between the former and revised criteria is that the revised criteria will require consideration of whether a higher rating is warranted based on incapacitating episodes. Preliminary Findings The Board makes two preliminary findings. First, both eyes will be considered service-connected for the purpose of this evaluation. The April 2013 rating decision awarded service connection for “diplopia, left eye, residuals of left intranuclear ophthalmoplegia.” From its narrative and the characterization of the disability, it was unclear whether this was a general award for residuals of left intranuclear ophthalmoplegia or whether the preceding words identifying left eye diplopia were considered limiting. In an October 2017 rating decision, an increased evaluation for the disability was granted and the rating decision code sheet recharacterized the service-connected disability to “diplopia, residuals of left intranuclear ophthalmoplegia.” The increased evaluation was based, in part, on a compensable level of visual acuity in the right eye; thus, impairment of both eyes was considered. This was a favorable determination for the Veteran and will not be disturbed by the Board. Both eyes will be considered service-connected. Second, the diplopia is not correctable by standard spectacle correction that includes a special prismatic correction. This is important because diplopia that is occasional or correctable with spectacles is evaluated as noncompensable. 38 C.F.R. § 4.79, DC 6090. The evidence is conflicted as to whether the Veteran’s diplopia is correctable by standard spectacles with special prismatic correction. A January 2013 VA treatment record indicated that intermittent diplopia in the primary gaze was correctable but diplopia continued to occur in right dextroversion. A February 2013 VA examination report indicated that diplopia was correctable. During that examination the Veteran reported that he had previously tried special prismatic correction and felt it was not helpful in resolving the diplopia. A January 2016 VA examination report indicated that it was not correctable. Proper interpretation of this evidence requires a general understanding of the Veteran’s underlying disability. By way of background, the Veteran’s diplopia stems from left internuclear ophthalmoplegia. See Internuclear ophthalmoparesis, https://www.uptodate.com/contents/internuclear-ophthalmoparesis (last accessed Nov. 19, 2018). This is considered a gaze abnormality, characterized by impaired horizontal eye movements with weak adduction of the affected eye and abduction nystagmus of the contralateral eye. In the Veteran’s case, his left eye is affected. When the Veteran looks right, the ability of his left eye to move in that direction is impaired, his right eye has abduction nystagmus, and there is resultant double vision. Given the forgoing, the Board finds that it is able to interpret the prior conflicting medical records; remand for an addendum opinion on this matter is not required. Reading the entirety of the evidence as a whole, for the entire period on appeal, diplopia occurring in primary gaze has been correctable but diplopia occurring in lateral gaze is not correctable. This is consistent with the January 2013 VA treatment record, January 2016 VA examination report, and the Veteran’s subjective reporting, which the Board finds credible. That evidence outweighs the contrary conclusion of the February 2013 VA examiner. Accordingly, the diplopia is not considered correctable for the purposes of this evaluation. Analysis Prior to January 15, 2016, a 30 percent rating is warranted for diplopia. A review of the evidence during that period showed corrected distance vision no worse than 20/40 or better bilaterally. E.g., February 2013 VA examination report and VA treatment record (01/23/2013). There was no visual field defect. There was internuclear ophthalmoplegia manifesting in diplopia in all visual fields, to include the central field; this occurred intermittently on primary gaze and constantly on right lateral gaze. As noted above, the diplopia in primary gaze was correctable but the diplopia in right lateral gaze was not correctable. Given the forgoing, there was diplopia in the central visual field, which under DC 6090 would approximate 5/200 visual acuity. Applying this approximation to the table of Impairment of Central Visual Acuity, along with 20/40 vision in the right eye, yields a 30 percent rating. A higher rating in excess of 30 percent is not warranted unless there is additional impairment of visual acuity (or visual field defect) because the diplopia is already rated at its maximum approximation to visual acuity. To that end, the evidence in this portion of the appeal period did not show visual field defect or visual acuity worse than 20/40 or better bilaterally. Thus, a rating in excess of 30 percent is not warranted prior to January 15, 2016. From January 15, 2016, a 40 percent rating is warranted. As with the prior portion of the appeal period, the Veteran’s diplopia was present in the central field and approximated 5/200 visual acuity. Here, however, corrected distance vision was measured as 20/50 bilaterally. E.g., January 2016 VA examination report. Applying 5/200 left eye visual acuity and 20/50 right eye visual acuity to the table of Impairment of Central Visual Acuity yields a 40 percent rating. A higher rating in excess of 40 percent is not warranted unless there is additional impairment of visual acuity (or visual field defect) because the diplopia is already rated at its maximum approximation to visual acuity. To that end, the evidence in this portion of the appeal period did not show visual field defect or visual acuity worse than 20/50 bilaterally. Thus, a rating in excess of 40 percent is not warranted from January 15, 2016. It is noted that § 4.78(b)(1) and (b)(3) provide for rating based on heightened levels of diplopia if both diplopia and impairment of visual acuity are present. Those heightened levels, however, may not exceed a 5/200 approximation for visual acuity. As the Veteran’s diplopia already meets such an approximation for the entire appeal period, those regulatory provisions are of no aid to his evaluation. From May 13, 2018, the Board must consider the impact of the revised rating criteria. Under those criteria, the General Rating Formula for Diseases of the Eye required rating based on visual impairment or incapacitating episodes, whichever would allow for a higher rating. There was no substantive difference in the evaluation of visual impairment, so the above findings continue to be applicable. Review of the evidence shows he did not experience incapacitating episodes, either as defined in the former criteria or the revised criteria. Accordingly, a higher rating would not be warranted under the revised criteria and the General Rating Formula for Diseases of the Eye. The Board has considered whether additional staged ratings would be appropriate; however, the two periods at issue are distinct and neither shows that a higher rating than assigned therein is warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The evidence showed diagnoses of bilateral pinguecula, bilateral dry eyes, and hyperopic anisometropia left greater than right eye with residual esophia in primary gaze and small hyperphoria. These diagnoses are distinct from the service-connected diplopia, and the evidence does not indicate that they are secondary disabilities. The Veteran has not asserted as much. The evidence shows additional symptoms and functional effects of ataxia, gait imbalance, decreased mobility and decreased manual dexterity. The February 2013 nexus opinion for diplopia identified these as distinct problems related to the in-service brain stem bleed. The February 2013 cranial nerves examination report identified them as symptoms of diplopia. Both statements were authored by the same examiner. Reading the reports as a whole, the Board finds they are distinct from the diplopia. It appears that in the cranial nerves examination report the examiner opined on the occupational impact of the Veteran’s service-related impairments, to include diplopia, gait imbalance, and dexterity problems. All these issues were simply grouped together for the purposes of the opinion. Accordingly, the symptoms of ataxia and gait imbalance, and their functional effects, are not considered part of the service-connected eye disability. A claim of service connection for ataxia and gait imbalance secondary to brain stem bleed will be referred to the agency of original jurisdiction (AOJ). The appeal also includes a claim of entitlement to a TDIU, which is predicated on this eye disability. That claim will be discussed in the REASONS FOR REMAND section below. There are no additional expressly or reasonably raised issues presented on the record. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran seeks entitlement to a TDIU. Remand is required for referral to the Director, Compensation Service, for extraschedular consideration of a TDIU. The Veteran seeks entitlement to a TDIU prior to July 25, 2018. For the reasons that follow, the Board finds that remand is required for referral to the Director, Compensation Service, for extraschedular consideration of a TDIU. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board may grant a TDIU to a veteran who meets certain disability percentage thresholds set forth in § 4.16(a) and is unable to secure and maintain substantially gainful employment. If a veteran fails to meet the disability percentage standards, then the Board cannot grant a TDIU in the first instance. If warranted, the Board may instead refer the claim to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Veteran’s compensation history shows he is only service connected for the eye disability, which is rated 30 percent prior to January 15, 2016 and 40 percent thereafter. These levels do not meet rating threshold set forth in § 4.16(a); thus, the entire appeal period under consideration must be addressed on an extraschedular basis. The Veteran graduated from college. He served as a fighter pilot in the U.S. Navy. After discharge from active service, he worked as a commercial pilot for Delta Airlines for approximately two decades. He reported that he became too disabled to work in August 2011 and has not worked since. A VA Form 21-4192 received from Delta Airlines indicated his last day of work was actually June 20, 2011. The form also noted that he was on long-term disability effective December 24, 2011; however, receipt of that benefit is non-consequential to the issue at hand as it is simply a form of insurance. The Veteran is service-connected for diplopia, an eye disability. A January 2012 letter form a private doctor indicated that his condition is permanent and cannot be medically improved or treated. The doctor opined that the Veteran should receive permanent disability because the eye disability makes him unable to safely fly an airplane. Employability opinions from the Veteran’s VA treatment records and the February 2013 and January 2015 VA examination reports relate that the Veteran would not be able to fly an airplane safely with his disability but he would be able to perform sedentary work, albeit in a limited capacity due to eye strain and discomfort after long periods of focusing on near work or computer work. The Board notes that the term sedentary work is not defined under VA law or regulations. While the examiner did not provide a precise definition of the term, from the description of the type of limitation that would occur, it is apparent the examiner was referring to a desk/office job in which an employee would be working on a computer or completing paperwork. Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). It is an acknowledgement that even though a rating less than 100 percent under the rating schedule may be correct, there are subjective factors that may permit 100 percent rating to a particular veteran under his or her own circumstances. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Board finds that this is such a case. The Veteran’s entire employment history, to include eight years in the Navy and nearly two decades in the private sector, was as an airplane pilot. He can no longer perform work of that type due to the visual impairment caused by his service-connected eye disability. It is presumed that same visual impairment would prevent him from engaging in work operating other commercial vehicles, as doing so would require adequate vision. His educational history weighs in favor of his ability to secure employment in a field that would not require the level of vision necessary to operate a commercial vehicle; however, VA employability opinions indicate that he would have difficulty with such desk or office work due to eye strain and discomfort. Resolving all reasonable doubt in favor of the Veteran, the Board concludes that he would not be able to secure and maintain substantially gainful employment consistent with his educational background and occupational history consisting solely of work as an airplane pilot. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is precluded from assigning a TDIU on an extraschedular basis in the first instance however. Accordingly, remand is required for referral to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer to the Director, Compensation Service, the issue of entitlement to a TDIU on an extraschedular basis. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel