Citation Nr: 20034084 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 13-25 466 DATE: May 15, 2020 ORDER Entitlement to an initial 30 percent evaluation for diplopia with left superior oblique palsy prior to September 27, 2018 is granted. Entitlement to a rating in excess of 30 percent for diplopia with left superior oblique palsy as of September 27, 2018 is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has had constant left eye diplopia in the central gaze as well as lateral and up from 21 to 40 degrees throughout the period on appeal. 2. The Veteran’s diplopia with left superior oblique palsy does not preclude him from obtaining or maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating, but no greater, for diplopia with left superior oblique palsy for the entire period on appeal have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6090. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an initial compensable evaluation for diplopia with left superior oblique palsy prior to September 27, 2018 and a rating in excess of 30 percent thereafter Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran has a noncompensable rating for left eye diplopia with left superior oblique palsy from October 13, 2011 to September 27, 2018 and a 30 percent rating thereafter. 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 and made no substantive changes as to how diplopia is rated other than eliminating the requirement for the use of a Goldmann chart. Evaluation of impairment of muscle function is based on the degree of diplopia. 38 C.F.R. § 4.78. 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. From 21 to 30 degrees, diplopia in the down equates to 15/200 visual acuity, diplopia in either lateral quadrant equates to 20/100 visual acuity, and diplopia in the up quadrant equates to 20/70 visual acuity. From 31 to 40 degrees, diplopia in the down quadrant equates to 20/200 visual acuity, diplopia in either lateral quadrant equates to 20/70 visual acuity, and diplopia in the up quadrant equates to 20/40 visual acuity. 38 C.F.R. § 4.79. 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 Diagnostic Code 6090 to the next poorer level of visual acuity, not to exceed 5/200. 38 C.F.R. § 4.78(b)(3). In accordance with 38 C.F.R. § 4.31, diplopia that is occasional or that is correctable with spectacles is evaluated at 0 percent. Here, the evidence reflects that upon Department of Veterans Affairs (VA) examination in October 2019, the Veteran was noted to have constant diplopia at central 20 degrees, 21 to 30 degrees, 31 to 40 degrees, and greater than 40 degrees. Thus, the examination supports a maximum schedular 30 percent rating for the Veteran’s left eye diplopia. The VA Regional Office assigned an effective date of September 27, 2018 for the 30 percent rating, identifying that date as the date on which the Veteran filed his claim for an increased rating. However, the Board of Veterans’ Appeals (Board) notes that the issue on appeal is the propriety of the initial rating assigned at the time service connection was granted in a June 2013 rating decision. In that decision, the agency of original jurisdiction awarded a noncompensable (zero percent) rating, effective October 13, 2011. The Veteran timely disagreed with the assigned initial rating, and perfected this appeal. Thus, the question of whether an initial rating greater than zero percent remains at issue. The Veteran was first afforded a VA examination in connection with his claim in May 2013. The examination report indicates that the Veteran has diplopia at central 20 degrees, lateral and up 21 to 30 degrees and lateral and up 31 to 40 degrees. The examiner checked the box that the Veteran’s diplopia is occasional rather than constant, describing that the Veteran’s diplopia occurs when he looks up or to the right. The examiner’s description matches the Veteran’s consistent description of his diplopia throughout the period on appeal in statements to the VA as well as at his June 2018 Board hearing. The Board also notes that the October 2019 VA examiner indicated that the Veteran’s condition has stayed the same since onset, and the Veteran compensates with head positioning. Thus, the Board finds that although the 2013 VA examiner indicated that the Veteran’s diplopia is occasional, it is only occasional in the sense that it only occurs when the Veteran looks in a certain direction. However, when the Veteran does look in that direction, he always experiences diplopia. Thus, the Board finds that the Veteran’s diplopia should be considered constant, not occasional. The Board thus finds that the Veteran is entitled to a 30 percent rating for diplopia for the entire period on appeal. A 30 percent rating is the highest possible schedular rating for diplopia. Subject to the provisions of § 3.383(a), 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 the service-connected visual impairment. 38 C.F.R. § 4.75(c). The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75(d). The Board notes that under § 3.383(a), compensation is payable for the combination of service-connected and nonservice-connected disabilities, provided the nonservice-connected disability is not the result of the veteran’s own willful misconduct. As pertinent to eye disabilities, this is allowed where (i) the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or (ii) the peripheral field of vision for each eye is 20 degrees or less. The evidence does not reflect that either criteria are met here; therefore, only visual impairment of the Veteran’s service-connected left eye is relevant for establishing the proper rating. The evaluation for visual impairment of one eye should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under Diagnostic Code 7800). 38 C.F.R. § 4.75(d). The Board has considered whether the Veteran has any manifestations of his service-connected left eye condition not based on visual impairment but finds that he does not. Based on the forgoing, the Board finds that a 30 percent rating, but no greater, is warranted for the Veteran’s diplopia with left superior oblique palsy, effective October 13, 2011. A rating higher than 30 percent is not warranted at any time during the period under review. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) The Veteran contends he is unemployable due to his service-connected diplopia with left superior oblique palsy. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service (Director) for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran’s only service-connected disability is his diplopia with left superior oblique palsy, which is rated at 30 percent. Therefore, the Veteran does not meet the schedular rating criteria for TDIU. The Board will thus consider whether referral for extraschedular consideration is warranted. The central inquiry in entitlement to TDIU 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). On his September 2018 Application for Increased Compensation Based on Unemployability, the Veteran indicated his last job was from 1974 to 1979 working as a model boat production supervisor. He indicated his highest level of education completed was one year of college. The Veteran’s DD-214 lists his military specialty as model maker. The Veteran testified at his June 2018 Board hearing that prior to service he built and drove race cars, but he could no longer do that after service due to his left eye condition. He stated that he last worked in the mid-1990s, doing protype work on camper shells and delivering them. He reported that he had also worked developing boats in 1979 but the company closed. The 2013 VA examiner opined that the Veteran’s double vision in right gaze and upgaze would impact his ability to work, noting it is very difficult to compensate with prisms in glasses. The 2019 VA examiner opined that the Veteran’s ability to do any job that requires good binocular vision such as operating a crane or other machinery would be impacted. The Board acknowledges that the Veteran’s left eye disability may prevent some jobs, such as being a race car driver or operating machinery, but finds that the evidence does not support that the Veteran is unable to secure or follow any substantially gainful occupation as a result of his left eye disability. For example, the Veteran has testified that he has experience in research and development and model making, but there is no evidence as to why his left eye disability would preclude him from that work. As noted above, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. In this connection, the evidence does not demonstrate that the Veteran would be precluded from securing or following any gainful employment on account of his left eye disability alone, as he has research and technical skills can be utilized in non-driving positions, or positions that do not involve use of heavy machinery. While the Board sympathizes with the Veteran’s inability to pursue a career in race car driving on account of his eye disability, the Board must note that whether a veteran can work in his or her preferred position is not the standard. Smith v. Shinseki, 647 F.3d 1380, 1382-83 (Fed. Cir. 2011). Based on the forgoing, the Board finds that the Veteran is not entitled to TDIU and referral to the Director for consideration of entitlement to TDIU is not warranted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.