Citation Nr: 1817804	
Decision Date: 03/23/18    Archive Date: 04/03/18

DOCKET NO.  11-21 920	)	DATE
	)
	)

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


THE ISSUE

1.  Entitlement to an initial compensable scheduler rating for bilateral diplopia of both eyes.

2.  Entitlement to an extraschedular rating for bilateral diplopia of both eyes.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

M. Riley, Counsel 


INTRODUCTION

The Veteran served on active duty from November 1970 to April 1974; from April to October 1987; and from January to September 2002.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In December 2013, in support of his claim, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board (Travel Board hearing).  A copy of the transcript is associated with the claims file, so is of record. 

This case was previously before the Board in November 2014 when it was remanded for additional development, specifically, to obtain copies of VA and private treatment records and to provide the Veteran a VA examination to determine the severity of the Veteran's diplopia.  That additional development since has been completed, in turn allowing the Board to proceed with readjudicating this claim.

The issue of entitlement to an extraschedular rating is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Throughout the claims period, the Veteran experienced occasional worsening to constant diplopia that is correctable with spectacles that include special prismatic correction.

CONCLUSION OF LAW


The criteria are not met for an initial compensable rating for diplopia.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.79, Diagnostic Code (DC) 6090 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Veteran is claiming entitlement to greater compensation, so a higher rating, for diplopia (double vision) associated with service-connected Graves' disease and hypothyroidism.  Service connection for the disability was awarded in the February 2010 rating decision on appeal with an initial noncompensable (0 percent) evaluation assigned effective December 10, 2008.  In written statements to VA and during his hearing testimony, the Veteran contends that a compensable initial evaluation is warranted for diplopia as he is unable to tolerate wearing corrective spectacles or contact lenses due to residuals of multiple sinus surgeries. 

Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects a Veteran's 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. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017).  If two ratings are potentially applicable, 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.  If the evidence is in equipoise, meaning about evenly balanced, all reasonable doubt material to a determination will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found.  In other words, the rating may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  In other cases, like here, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, even in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, a staged rating may be assigned.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

A disability may require re-evaluation in accordance with changes in a Veteran's condition.  In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.  See also Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).

The RO has assigned the Veteran's service-connected bilateral diplopia an initial noncompensable rating under DC 6090 pertaining specifically to diplopia.  See 38 C.F.R. § 4.79.  The percentage ratings under DC 6090 are based on the degree of diplopia and the equivalent visual acuity.  A note to Diagnostic Code 6090 indicates diplopia that is occasional or that is correctable with spectacles is noncompensable in accordance with 38 C.F.R. § 4.31.  

The Board notes the rating criteria for diseases of the eye were amended during the pendency of this appeal.  See 73 Fed. Reg. 66543 (Nov. 10, 2008) (effective Dec. 10, 2008 ).  Prior to December 10, 2008, diplopia that was only occasional or was correctable was not considered a disability and was not capable of service connection.  38 C.F.R. § 4.77  (2008).  Service connection for the Veteran's disability and the current noncompensable evaluation for diplopia under DC 6090 was assigned effective December 10, 2008, the same date as the change in the rating criteria.  As the previous criteria did not provide for any higher ratings; indeed, it did not consider the service-connected condition a disability at all; the Board need only consider whether a higher rating is warranted under the current criteria. 
Here, the preponderance of evidence establishes that the Veteran's diplopia has been correctable and/or occasional throughout the appeal period.  VA medical records document regular treatment for diplopia at various VA facilities with multiple corrective treatments prescribed.  In July 2007, the Veteran's disability was characterized as residual binocular intermittent horizontal and vertical diplopia, becoming more constant.  His condition became less intermittent and occasional throughout the claims period with constant diplopia diagnosed at the February 2015 VA examination.  The Veteran's condition has also been correctable with spectacles utilizing special prismatic correction.  He was issued distance and near vision spectacles with prismatic correction at the VAMC in July 2007 and stated in January 2008 that they resolved his double vision.  The Veteran similarly reported that his spectacles resolved his double vision in July 2008 and October 2009, but also consistently noted that he chose not to wear them because they caused pain on the bridge of his nose due to sinus surgery residuals.  The Veteran was also issued corrected contact lenses in October 2012 and May 2013, but again, due to his reported discomfort, he does not wear them on a daily basis.  The Veteran currently utilizes a VA-issued hand magnifier for reading and a one-sided blacked out contact lens was ordered by his VA care provider in August 2017 to resolve his diplopia.  Thus, while the Veteran does not wear the VA-provided eyewear due to a sinus condition, his diplopia is correctable with spectacles and contact lenses.  

The Board acknowledges the Veteran's credible testimony during the December 2013 hearing regarding the effect of his diplopia on his daily life and his discomfort when using corrective spectacles and contact lenses.  However, the Veteran also testified that he experiences 20/20 vision, i.e. normal vision, when utilizing his corrected appliances.  VA treatment records and the June 2009 and May 2015 VA examinations clearly establish that the Veteran's diplopia is correctable by spectacles with prismatic correction and contact lenses.  The February 2015 VA examiner concluded that the Veteran's diplopia was not correctable, but this conclusion appears to have been reached solely based on the Veteran's reports of discomfort associated with the wearing of glasses and contact lenses.  The Board finds that the conclusions of the Veteran's treating VA physicians and the June 2009 and May 2015 VA examiners outweigh the single finding by the February 2015 VA examiner.  To the extent the Veteran alleges that his discomfort and pain associated with wearing glasses renders his diplopia non-correctable, this contention is addressed in the remand below in the context of extraschedular consideration for the disability.  

The competent and credible evidence of record establishes that the Veteran's diplopia was correctable with spectacles throughout the claims period and the Board is bound by the VA rating schedule, which indicates even constant diplopia is noncompensable if it is correctable by spectacles.  See 38 C.F.R. § 4.79, DC 6090. The Board does not need to consider alternate DCs for rating the disability on appeal because diplopia is specifically listed in the VA rating schedule.  See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (indicating a listed condition must be rated under the diagnostic code that specifically pertains to it).  Therefore, an initial compensable scheduler rating is not warranted for the Veteran's diplopia at any time during the claims period.


ORDER

Entitlement to an initial compensable scheduler rating for bilateral diplopia of both eyes is denied.


REMAND

The Board finds that a remand is necessary in this case with respect to whether an extraschedular rating is warranted for the service-connected bilateral diplopia.  The Board may not assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).  In this case, the Veteran essentially contends that his diplopia is unusual or exceptional in that he is unable to tolerate the wearing of corrective spectacles or lenses due to residuals associated with multiple sinus surgeries.  The Board interprets the Veteran's arguments as raising a claim for an extraschedular rating under 38 C.F.R. § 3.321(b) for an exceptional or unusual disability with manifestations that are not fully considered by the scheduler criteria and DC 6090.

Accordingly, the case is REMANDED for the following action:

1.  Refer the claim for a compensable initial rating for diplopia of both eyes to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) for consideration of whether a compensable initial rating is warranted on an extraschedular basis.  

2.  After completion of the above, readjudicate the claim on appeal.  If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case (SSOC) before returning the case to the Board, if otherwise in order.

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

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




______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs