Citation Nr: 21003402 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-09 144 DATE: January 21, 2021 ORDER Entitlement to an increased rating of 40 percent, but no higher, for a traumatic brain injury (TBI) is granted. Entitlement to 70 percent, but no higher, for a mood disorder secondary to a TBI is granted. Entitlement to an increased rating of 20 percent, but no higher, from July 30, 2008 to January 5, 2015 for cranial nerve involvement of the left eye and bilateral convergence insufficiency and bilateral dry eye syndrome is granted. Entitlement to an increased rating in excess of 30 percent for cranial nerve involvement of the left eye and bilateral convergence insufficiency and bilateral dry eye syndrome from January 6, 2015 is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s TBI is shown to have a highest level of severity of “2” for the applicable ten facets. 2. The Veteran’s mood disorder is manifested by occupational and social impairment with deficiencies in most areas as a result of psychiatric symptomatology without more severe manifestations that more nearly approximate total occupational and social impairment. 3. From July 30, 2008 to January 5, 2015, the Veteran had cranial nerve III palsy of the left eye. 4. From January 6, 2015, the Veteran experienced concentric contraction of visual field with remaining field between 16 and 30 degrees to be rated as visual acuity of 20/100 in the left eye combined with concentric contraction of visual field between 31 and 45 degrees to be rated as visual acuity of 20/70 in the right eye. CONCLUSIONS OF LAW 1. The criteria for establishing an initial 40 percent evaluation, but no higher, for TBI throughout the appeal period have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, Diagnostic Code 8045. 2. The criteria for a 70 percent disability rating, but no higher, for a mood disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 3. The criteria for a 20 percent rating, but no higher, for paralysis of cranial nerve III from July 30, 2008 to January 5, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.25, 4.79, Diagnostic Codes 6030 and 6080. 4. The criteria for a 30 percent rating, but no higher, for visual defects due to paralysis of cranial nerve III, convergence insufficiency, and dry eye syndrome have been met as of January 6, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.25, 4.79, Diagnostic Codes 6030, 6066, and 6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1962 to May 1965. These matters are on appeal to the Board of Veterans’ Appeals (Board) from an August 2009 rating decision. At the outset, the Board acknowledges that entitlement to a TDIU is raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has been assigned a TDIU as of March 6, 2014, the date he became eligible on a schedular basis until May 13, 2016, the date he became entitled to a 100 percent rating. Thus, the Board does not have jurisdiction over an issue of entitlement to a TDIU at any time throughout the appeal period. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.   In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment).   Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was granted service connection for all three issues on appeal in an August 2009 rating decision effective July 30, 2008, the date of claim. A claim for an increased rating was received on November 13, 2009, within a year of issuance of the rating decision on appeal. As the Veteran has pursued a higher rating since the grant of service connection, the Board will consider the evidence as of July 30, 2008. 1. Increased rating – TBI The Veteran currently has a 10 percent rating for his TBI under Diagnostic Code 6204 for a residual symptom of occasional dizziness. Diagnostic Code 8045 provides for the evaluation of traumatic brain injury residuals. See 38 C.F.R. § 4.124a. There are three main areas of dysfunction listed that may result from traumatic brain injuries and have profound effects on functioning: cognitive (which is common in varying degrees after traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” Id. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified.” Id. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. Assign a 100 percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Pursuant to Diagnostic Code 8045, as there is a diagnosis of a mental disorder, emotional/behavior dysfunction is rated under 38 C.F.R. § 4.130. Similarly, the Veteran was diagnosed with Parkinson’s disease in 2014 which is secondary to his mood disorder (caused by anti-psychotic medications). Thus, he is separately rated for bilateral upper and lower extremity impairment, dysarthria, right and left side cranial nerve XI impairment with loss of automatic movement and stooped posture, and a neurogenic bladder. Additionally, he is separately rated for the cranial nerve III involvement with convergence insufficiency involving the eyes. The Board will consider all other TBI residuals under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified.” In an October 2008 evaluation for social security disability benefits, a medical determination was made that the Veteran did have problems with memory. In a January 2009 consultation, the Veteran’s primary care provider concluded the Veteran shows problems with mood and short-term memory on examination. In a January 2009 VA examination, the Veteran endorsed problems focusing, concentrating, and with short-term memory since his in-service TBI. It was noted that the Veteran stuttered slightly and had trouble finding words. He reported intermittent dizziness, sleep disturbance, headaches, and decreased balance. The examiner listed mild memory impairment by history but noted there was no evidence of memory loss on examination. The examiner also opined that the speech impairments were unlikely secondary to the TBI in view of delay and onset of symptoms nearly 40 years after the head injury. In a May 2009 neuropsychology evaluation, the Veteran was found to have average intellectual, memory, motor, and executive functioning that did not appear consistent with ongoing sequelae associated with a TBI. Instead, his neuropsychological presentation suggested an individual with significant psychiatric symptoms that had only been minimally treated. In a January 2010 VA examination, the examiner noted a complaint of mild memory loss, normal judgment, routinely appropriate social interaction, normal orientation, motor activity, and visual spatial orientation. He did not have subjective symptoms that interfered with work or instrumental activities of daily living and was able to communicate. He had one or more neurobehavioral effects that did not interfere with workplace or social interaction. Thus, the highest level of severity for the Veteran’s TBI was a “1” – a complaint of mild memory loss. The Veteran endorsed poor memory at his September 2014 DRO hearing. In a September 2014 medical record, the Veteran’s forgetfulness was a noted concern with an incident the week prior when a fire started after he left the stove on. In a March 2015 neuropsychology evaluation, the evaluator concluded the testing results suggest the Veteran has the capacity to function at least in the low average to average range on measures of memory and complex executive functioning. He has at least low average premorbid abilities. The evaluator concluded the Veteran is experiencing heightened levels of emotional distress. In a March 2015 mental health note, the Veteran reported he suffered from severe memory problems which made it difficult for him to manage medication or complete routine activities. The drafting physician noted stutter-like responses and sporadic eye contact. In an April 2015 VA examination, the examiner concluded there was no sequela from the TBI as the Veteran lacked the specific signs and symptoms that would indicate sequela. In a December 2015 neuropsychology evaluation, the evaluator concluded that the findings were similar to previous March 2015 and 2010 evaluations in that he had slight cognitive impairment premorbid with significant emotional distress. Medical treatment records from Detroit VAMC reflect the Veteran’s more recent Parkinson’s symptoms but also note memory loss and a poor memory baseline for 20-30 years associated with a TBI. Based on the evidence of record, while evidence of cognitive impairment due to the TBI is inconsistent, the Board finds there is objective evidence on testing of mild impairment of memory resulting in mild functional impairment warranting a level “2”. Not only has the Veteran and his spouse consistently complained of memory loss since the TBI, but medical providers have noted short-term memory loss on examination. No other applicable facets warrant a severity level higher than “2”. While there are notations of stuttered speech and difficulty finding words, the evidence indicates that the Veteran is largely able to communicate and is only occasionally impaired in that regard. While the evidence also reflects some difficulty making decisions suggesting impaired judgement, this appears to exist only with complex or unfamiliar decisions. In sum, the Veteran is entitled to a 40 percent rating for his TBI due to objective evidence on testing of mild impairment of memory. 2. Increased rating – Mood disorder secondary to TBI The Veteran currently has a 50 percent rating evaluated under VA’s General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. Under the formula, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. As the United States Court of Appeals for the Federal Circuit has explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’“ Vazquez-Claudio, 713 F.3d at 117-18. Furthermore, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126 (a). In an October 2008 evaluation for social security disability, he reported low energy, poor motivation, nightmares, sleep impairment, and poor appetite. His hobbies included reading, watching TV, and talking on the phone, but it was noted that his activities have changed due to increased depression. In a June 2009 evaluation, the Veteran endorsed the same symptoms as in October 2008 along with suicidal and vengeful thoughts. In a January 2009 VA examination, the Veteran endorsed changes in mood, feeling depressed and sad, with difficulty enjoying activities. He experienced feelings of hopelessness and endorsed past suicidal thoughts. He reported decreased appetite, poor concentration and energy, and that he sleeps a lot during the day. He was diagnosed with a mood disorder secondary to a TBI. In May 2009 neuropsychological testing, the Veteran was found to be socially isolated and despondent with interpersonal conflicts. In his September 2014 DRO hearing, the Veteran and his spouse explained that when on his medications, his psychiatric symptoms are stable. However, in a recent incident when his medication wore off, he became angry and depressed with intrusive thoughts of hurting people. According to his wife, the Veteran often panics and becomes very nervous, and becomes very angry at least once a month. In a December 2014 VA examination, the examiner concluded the Veteran’s psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity. His spouse reported that the Veteran becomes angry, irritable, and easily frustrated with people. He will yell and threaten others. He has strong familial ties as he has a good relationship with his wife, son, and grandchildren, though other treatment records indicate occasional conflict. He reported going to the gym to swim three times a week. He experiences depressed mood, feelings of hopelessness, anxiety, and irritability, with fleeting suicidal thoughts. The examiner indicated additional symptoms of impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. In a December 2014 Detroit VAMC treatment note, the Veteran stated he has good days and bad days. Some days he socializes, plays cards with friends, goes to the gym, and reads books, and on bad days he becomes angry, depressed, and has intrusive thoughts of hurting others. Other 2014 treatment records endorse the depression and anger as well as suicidal ideation and weekly nightmares, but that he remains active by walking the dog and going to the gym. In a March 2015 mental health note, he endorses recurring suicidal thoughts, anxious and depressed mood with irritability and impatience. He states when he is depressed, he will sleep 12 hours a day. The evaluator concluded the Veteran is in chronic distress associated with his agitation and preference to be alone rather than interact with others. In a November 2015 treatment note, he complained of sleep impairment with frequent nightmares and being anxious and often tearful. In a December 2015 neuropsychological evaluation, the Veteran was determined to have primary symptoms associated with depression, social withdrawal, agitation, and anxiety. The report reflected that in the past 5 years, the Veteran has had recurring suicidal thoughts with an increasing anxious, depressed, and irritable mood. His wife believed the Veteran had become more impulsive. In a January 2016 treatment note, the Veteran endorsed having a temper and becoming upset with friends and family and experiencing feelings of failure. He reported sleeping 10-12 hours a day and having crying spells 4 to 5 times weekly and paranoia. In April 2016, he reported that problems with his son have made him depressed and angry, and he has had crying spells 4 to 5 times weekly. In July 2016, he endorsed feelings of failure and a depressed mood. He was sleeping well and crying spells had been occurring infrequently. He reported feeling paranoid. In October 2016, he described feeling depressed with mood swings and an inability to stay focused. The treating provider noted disorganization of thought. In a September 2016 VA examination, the examiner determined the Veteran’s psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity. He reported having a great relationship with his wife, son, and grandchildren. He has been on a medication regimen for his sleep which helps him sleep better and controls his nightmares to some extent. He plays cards with friends 2 to 3 times per week. He reported feeling anxious at times and at times becoming angry with his family. He also endorsed feelings of sadness and crying spells at times. There was no suicidal or homicidal ideation at present. His listed symptoms were depressed mood, anxiety, disturbances of motivation and mood, mild memory loss (considered under the TBI criteria), difficulty in establishing and maintaining effective relationships and difficulty in adapting to stressful circumstances. The Board finds that the Veteran’s psychiatric symptoms more closely approximate occupational and social impairment with deficiencies in most areas. He has endorsed suicidal ideation intermittently throughout the appeal period. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). The record also reflects continuous anxiety and feelings of depression. Both the Veteran and his spouse have recounted instances of anger, yelling, and threatening people, indicating impaired impulse control. The evidence also shows difficulty in adapting to stressful circumstances; for example, in several of the Veteran’s neuropsychological evaluations, frustration and irritability were noted. The Veteran also exhibits several symptoms associated with the 50 percent rating criteria; however, considering the frequency of symptoms such as crying spells, paranoia, and intrusive thoughts of hurting others, the Board finds the totality of his symptomology more closely approximate a 70 percent rating. A 100 percent rating is not indicated because the evidence does not reflect total occupational and social impairment. The Veteran has strong familial relationships, friends he socializes with regularly, and remains active with activities such as playing cards, walking the dog, or going to the gym. He does not exhibit any of the symptoms listed in the 100 percent rating criteria. The Veteran is entitled to a 70 percent rating for his mood disorder. 3. Increased rating – cranial nerve involvement with convergence insufficiency and dry eye syndrome from July 30, 2008 to January 5, 2015 The Veteran was initially assigned a 10 percent rating for his eye disabilities based on active pathology. In an August 2015 rating decision, his rating was increased to 30 percent effective January 6, 2015. Thus, the issues on appeal are entitlement to an increased rating in excess of 10 percent from July 30, 2008 to January 5, 2015, and an excess of 30 percent thereafter. During the pendency of the instant appeal, VA revised the criteria for rating eye disabilities on two occasions. The first set of revisions became effective on December 10, 2008, and the second set of revisions became effective on May 13, 2018. For the period of appeal prior to December 10, 2008, only the rating criteria in effect prior to December 10, 2008 may be considered. See 38 C.F.R. § 4.84a (2007). For the period of appeal prior to May 13, 2018, the rating criteria in effect prior to and as of December 10, 2008 may be considered. See 38 C.F.R. § 4.84a (2007); see 38 C.F.R. § 4.79 (2017). For the period of appeal beginning on May 13, 2018, the rating criteria in effect prior to December 10, 2008 and as of December 10, 2008 and as of May 13, 2018 may be considered. See 38 C.F.R. § 4.84a (2007); see 38 C.F.R. § 4.79 (2017); see 38 C.F.R. § 4.79 (2018). The evaluation of visual impairment is based on impairment of visual acuity, visual field, and muscle function. 38 C.F.R. § 4.75 (a). Under Diagnostic Code 6080, visual field defects are evaluated as follows: A 10 percent evaluation for concentric contraction of visual field with remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally. A 20 percent evaluation is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees unilaterally. A 30 percent evaluation is assigned for concentric contraction of visual field with remaining field of 31 to 45 degrees bilaterally; remaining field of 5 degrees unilaterally; loss of inferior half of visual filed bilaterally; loss of temporal half of visual field bilaterally; and homonymous hemianopsia visual field defects. A 50 percent rating is assigned for concentric contraction of visual field with remaining field of 16 to 30 degrees bilaterally. A 70 percent rating is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees bilaterally. A 100 percent rating is assigned for concentric contraction of visual field with remaining field of 5 degrees bilaterally. Visual impairment is also rated based on impairment of visual acuity (excluding developmental errors of refraction).38 C.F.R. § 4.79, Diagnostic Codes 6061-6066. 38 C.F.R. § 4.76 (b) dictates that evaluation of visual acuity should be done on the basis of corrected distance vision with central fixation, unless the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye. A 10 percent rating is warranted only when there is (1) 20/50 vision in one eye with 20/40 or 20/50 vision in the other eye; (2) 20/70 vision in one eye with 20/40 vision in the other eye; or (3) 20/100 vision in one eye with 20/40 vision in the other eye. A 20 percent rating is warranted when there is (1) 20/70 vision in one eye with 20/50 vision in the other eye; (2) 20/100 vision in one eye with 20/50 vision in the other eye; (3) 20/200 vision in one eye with 20/40 vision in the other eye; or (4) 15/200 vision in one eye with 20/40 vision in the other eye. A 30 percent rating is warranted (1) when vision in both eyes is correctable to 20/70; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; (6) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; and (7) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/40. A 40 percent rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/70; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/50 or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/40. A 50 percent disability rating is warranted (1) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/70; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/70; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/50. A 60 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/100; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 andvision in the other eye is correctable to 20/100; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/100; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/70 or 20/100. A 70 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/200; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/200; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/200; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/200; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/200. An 80 percent disability rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 15/200; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 15/200; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 15/200; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 15/200; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 15/200. A 90 percent disability rating is warranted only (1) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 10/200; (2) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 10/200; (3) when vision in one eye is no more than light perception and vision in the other eye is correctable to 10/200; or (4) when there is anatomical loss of one eye and vision in the other eye is correctable to 10/200. A 100 percent disability rating is warranted only (1) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 5/200; (2) when vision in one eye is no more than light perception and vision in the other eye is correctable to 5/200; (3) when there is anatomical loss of one eye and vision in the other eye is correctable to 5/200; (4) when there is no more than light perception in both eyes; or (5) when there is anatomical loss of both eyes. To determine the rating for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service-connected, separately rate the visual acuity and visual field defect, expressed as a level of visual acuity, and combine them under the provisions of § 4.25. 38 C.F.R. § 4.77 (c). In a January 2009 VA examination, the Veteran complained of slight burring of vision that corrects with glasses. His corrected distance visual acuity was 20/20 bilaterally. Convergence insufficiency was shown on examination. His diagnoses included multiple cranial nerve involvement and convergence insufficiency associated with his TBI. His age-related macular degeneration and early cataracts were unrelated to the TBI. The Veteran’s right eye had a concentric contraction of visual field with remaining field of 55.25 degrees. His left eye had a concentric contraction of visual field with remaining field of 57.5 degrees. A bilateral concentric contraction with remaining field between 46 to 60 degrees warrants a 10 percent rating. In a January 2010 VA examination, the Veteran’s listed symptoms were glare, blurring, impaired night vision, and photophobia. His corrected distance visual acuity was 20/20 bilaterally. Mild convergence insufficiency at near was again noted, as well as mild old cranial nerve III of the left eye. It was indicated that visual field testing using the Goldmann chart was conducted and there was no visual field defect; however, the report does not include those results. In his September 2014 DRO hearing, he complained of grittiness, irritation, and stinging of the eyes. He uses cream and eyedrops frequently and has had eye plugs placed. These symptoms and treatment are confirmed by VA treatment records. Multiple treatment records reflect a diagnosis of cranial nerve III palsy. The evidence of record between July 30, 2008 and January 5, 2015 show visual field defects warranting 10 percent. However, Diagnostic Code 6030 which encompasses paralysis involving cranial nerve III warrants a 20 percent rating under each revision of the regulations. As rating under Diagnostic Code 6030 would be most beneficial to the Veteran, the Board finds a 20 percent rating is most appropriate. 4. Increased rating – cranial nerve involvement with convergence insufficiency and dry eye syndrome from January 6, 2015 On January 6, 2015, the Veteran underwent another VA examination. His corrected distance visual acuity was 20/40 or better bilaterally. Paralysis of cranial nerve III on the left side was confirmed. Upon Goldmann visual field testing, the Veteran was found to have concentric contraction with remaining field of 18.875 in the left eye. Pursuant to the Diagnostic Code, concentric contraction with remaining field between 16 and 30 degrees unilaterally warrants a 10 percent rating, or, assignment can be based upon visual acuity of the affected eye as 20/100. The Veteran was found to have concentric contraction with remaining field of 34.75 in the right eye. Pursuant to the Diagnostic Code, concentric contraction with remaining field between 31 and 45 degrees unilaterally warrants a 10 percent rating, or, assignment can be based upon visual acuity of the affected eye as 20/70. Visual acuity of 20/100 in one eye and 20/70 in the other warrants a 30 percent rating. A rating based on visual acuity of 20/100 in one eye and 20/70 in the other is more beneficial to the Veteran than rating based on Diagnostic Code 6030 (20 percent) or combining the visual field defects (20 percent). Thus, the Veteran is entitled to a 30 percent, but no higher, as of January 6, 2015, the date entitlement became factually ascertainable. His claim is denied. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, Associate 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.