Citation Nr: 21063787
Decision Date: 10/15/21	Archive Date: 10/15/21

DOCKET NO. 20-07 912
DATE:       October 15, 2021

ORDER

Entitlement to a compensable rating for a traumatic brain injury (TBI) prior to February 23, 2021, is denied.

Entitlement to 40 percent rating for a TBI beginning February 23, 2021, is granted.

Entitlement to a rating higher than 30 percent for a left eye injury is denied.

REMANDED

Entitlement to a separate rating for a separate vestibular disorder is remanded. 

FINDINGS OF FACT

1. Prior to February 23, 2021, the Veteran's TBI produced cognitive, emotional/behavioral, and physical symptoms that were either considered within normal limits or did not produce functional impairment warranting a compensable evaluation. 

2. On and after February 23, 2021, the Veteran's TBI produced symptoms of moderately impaired judgment, visual spatial orientation, and neurobehavioral symptoms. 

3. The Veteran's non-service-connected right eye is rated at a visual acuity of 20/40 and his right eye peripheral field of vision is greater than 20 degrees. He has not experienced any incapacitating episodes during the review period.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a compensable rating for a TBI prior to February 23, 2021 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.1, 4.2, 4.7, 4.124a, DC 8045.

2. The criteria for entitlement to 40 percent rating, but no higher, for a TBI from February 23, 2021 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.1, 4.2, 4.7, 4.124a, DC 8045.

3. The criteria for entitlement to a rating higher than 30 percent for a left eye condition are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.76a, 4.79, Diagnostic Code 6006-6064. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from June 1970 to May 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). These matters were remanded once in May 2021 for further development and returns now for appellate consideration. 

This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c).

Increased Rating

Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities.

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.

1. Entitlement to a compensable rating for a TBI prior to February 23, 2021, is denied.

2. Entitlement to 40 percent rating for a traumatic brain injury (TBI) beginning February 23, 2021, is granted.

The Veteran contends that he is entitled to a higher compensable disability rating for a TBI. He is currently in receipt of a noncompensable rating prior to July 7, 2021, and a 10 percent rating thereafter. For the following reasons, however, the Board agrees that a compensable rating of 40 percent is warranted beginning the earlier date of February 23, 2021. 

DC 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. DC 8045 provides:

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. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."

Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, 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 TBI Not Otherwise Classified." However, 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 TBI Not Otherwise Classified" table.

Evaluate emotional/behavioral dysfunction under § 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 TBI Not Otherwise Classified."

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 TBI. For residuals not listed 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 § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.

The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI 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. A 100-percent evaluation is warranted 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.

Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI 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.

Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation.

Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.

Here, in accordance with Diagnostic Code 8045, the Veteran has already been rated for headaches under DC 8100. His tinnitus is rated under DC 6260, and his left eye condition is rated under DC 6006-6064. The Veteran's left eye condition is separately on appeal and will be addressed in the following section.

The Veteran was afforded VA examinations in April 2017 and July 2021. 

During his April 2017 examination, he reported "congestion in his head and auditory hallucinations for the past 15 years," which the examiner commented were not likely associated with his TBI. There were no complaints of impairment related to memory, attention, concentration, consciousness, or executive functions. The Veteran's judgment was considered normal, and social interactions deemed appropriate. Motor activity was also found to be normal, with normal visual spatial orientation and communication abilities. The examiner opined, overall, that the Veteran's symptoms had no impact on his ability to work. 

In contrast, the July 2021 VA examiner noted several impairments that the Board agrees warrants a higher rating. Specifically, the Veteran reported increased difficulty concentrating. He also reported headaches, dizziness, and abdominal pains. He stated he had seizures, but, as noted by the VA examiner, when he described his seizure, "it was mentioned as 'anxiety', but his symptoms are getting dizzy and nausea with vomiting and stomach cramping and 'passing out' there is no mention of shaking or seizure like activity." As will be explained in the Remand section, the Board finds it necessary to, based on the Veteran's reported symptoms of dizziness, nausea, and frequent falls, assess whether a separate compensable rating would be appropriate as a separate vestibular disorder. 

In reviewing the Veteran's reported and observed/documented symptoms during the entire review period, the Board makes the following specific findings regarding each facet described in "Evaluation of Cognitive Impairment and other Residuals of TBI Not Classified." 

Impairment of memory, attention, concentration, executive functions 

Prior to February 23, 2021, the Veteran's memory, attention, concentration, and executive functions were considered within normal limits. For example, a mental disorders DBQ conducted in September 2018 noted the Veteran's memory and concentration to be "WNL" (within normal limits). Similarly, an April 2017 TBI VA examination found no complaints of impairment of memory, attention, concentration, or executive functions. Consequently a "0" level of impairment (in other words, noncompensable) is assigned for the period prior to February 23, 2021. 

After February 2021, however, treatment records and VA examinations indicate a compensable level of impairment comparable to "1" or "mild" memory loss. In other words, mild memory loss but without objective evidence on testing of mild impairment of memory. For example, the Veteran reported during his July 2021 VA examination that he has difficulty remembering simple events that happened recently or things told to him. He also reported walking to check the mail but then later asking his wife if the mail had come. During this examination his wife confirmed the Veteran's reports of memory deficits. The Veteran also reported calling his wife to tell her he was driving but did not remember where he was trying to go. The Veteran's hearing testimony indicating he had difficulty focusing on specific items and topics. 

Impairment of Judgment

Prior to February 23, 2021, the Veteran's judgment was considered good. For example, a mental disorders DBQ conducted in September 2018 noted the Veteran's memory and concentration to be WNL. He was also at this time found to be capable of managing his own financial affairs. An April 2017 VA examination found the Veteran's judgment to be normal. 

After February 23, 2021, the Veteran's judgment was noted by the VA examiner to be mildly impaired; however, the Board has found the Veteran's reports to indicate moderate impairment. For example, during his July 2021 VA examination and February 2021 hearing, he reported usually having difficulty judging decisions such as grocery shopping and would go to the store and buy only one item and then have to return later in the day for other items. Similarly, he was noted to be unable to judge what he needs for dinner or meals. A level "2" for moderate impairment is assigned due to the frequency in which the Veteran has described having difficulty with complex decisions such as planning and executing a trip to the grocery store in order to prepare a meal. 

Impairment of Social Interaction

No impairment to the Veteran's social interactions were noted in his treatment records. The Veteran's treatment records indicate he exhibited routinely appropriate behavior. For example, his September 2018 DBQ indicated he exhibited open, cooperative behavior. A treatment note from March 2017 notes the Veteran as being cooperative, with normal mood and affect. An April 2017 VA examination found the Veteran's social interactions to be routinely appropriate. During his July 2021 VA examination, he was noted as having routinely appropriate social interaction and there was no mention of difficulty with social interactions during the Veteran's hearing. Consequently, the Board assigns a "0" for the entire period on appeal. 

Impairment of Orientation

The evidence of record is silent for any indication prior to February 23, 2021 that the Veteran was not oriented to person, time, place, and situation. An April 2017 VA examination, for example, found the Veteran to be always oriented to person, time, place, and situation. Consequently, the Board assigns a "0" for this period.

After February 23, 2021, however, the Veteran's report during his July 2021 examination in which he indicated he had on occasion called his wife while driving because he did not know where he was located. He also reported this during his hearing. Similarly, his wife also reported during his July 2021 examination that he will frequently wake up in the middle of the night and want to go to the store. He was noted by the examiner as forgetting the day or situation at times. As a result, the Board assigns the level "2" for the "Orientation" facet in that he has reported and been described as being occasionally disoriented to two of the four place aspects (person, time, place, situation). 

Impairment of Motor Activity

The evidence of record is silent for any indication prior to February 23, 2021. For example, an April 2017 VA examination found the Veteran to have normal motor activity.

After February 23, 2021 and in particular, during his July 2021 VA examination, he was noted as having mildly slowed motor activity. For example, he reported his wife typically writes for him because his handwriting has become illegible. The examiner characterized this as motor activity that is normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). The Board therefore assigns a "1" for this later time period. 

Impairment of Visual Spatial Orientation 

The evidence of record is silent for any indication prior to February 23, 2021. For example, an April 2017 VA examination found the Veteran to have normal visual, spatial orientation. 

After February 23, 2021, the Veteran's report during his July 2021 examination in which he indicated he had, on occasion, called his wife while driving because he did not know where he was located. He also reported during his examination that he was unable to judge distances and frequently stumbled and fell. He also reported having difficulty judging the distance between cars. During his hearing, the Veteran's wife clarified that he was eventually able to orient himself. The Board therefore assigns a "2" for moderate impairment and usually (as opposed to occasionally) getting lost in unfamiliar surroundings. The Board acknowledges the Veteran's report during his July 2021 examination that he frequently gets lost in familiar areas; however, in placing this comment into the context of his other statements and his hearing testimony, the Board finds that the severity of his visual spatial orientation is more comparable to a level "2" in that he reported eventually being able to orient himself if he becomes lost.  

Subjective Symptoms

Mild anxiety was noted during the Veteran's mental disorders DBQ in September 2018, which the examiner indicated produced occupational and social impairment with reduced reliability and productivity, but no overall functional impairment. The Board equates this to "subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships." The Veteran was also noted to have fatigue and sleep disturbance, which the examiner specifically related to the Veteran's insomnia diagnosis rather than his TBI. No other subjective symptoms were noted during his earlier April 2017 VA examination. A "0" is therefore assigned for this earlier period. 

The Veteran's July 2021 VA examination noted the Veteran's headaches, dizziness, and tinnitus as three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. However, as previously indicated, these symptoms are assessed under separate ratings rather than under DC 8045. A "0" is therefore also assigned for this period. The Veteran also reported experiencing worsening anxiety, which will be considered in the following discussion of the "neurobehavioral effects" facet. 

Neurobehavioral Effects 

Prior to February 23, 2021, the Veteran was not noted to have any neurobehavioral impairments. See April 2017 VA examination report. Therefore, a "0" is assigned for this time period.

After February 23, 2021, and during his July 2021 VA examination, he reported worsening anxiety. He also reported during his July 2021 examination and during his hearing he became easily upset when he thinks he is being yelled at or scolded. His wife reported he frequently lashed out and hit walls or things when he was upset. During his hearing, he also indicated he experiences uncontrolled agitation, particularly towards his wife. The Board therefore assigns a "2" for this period, in that the Veteran experiences one or more neurobehavioral effects that frequently interfere with his social interactions but do not preclude it. 

Communication 

Prior to February 23, 2021, the Veteran was not noted to have any communication impairments. For example, his September 2018 DBQ indicated his speech, rhythm rate, tone, and volume were all within normal limits, albeit with a non-linear thought process, tangential content and need for redirection noted. The Board equates this to the level "0" under the communication facet in that the Veteran was observed to be able to communicate by spoken language and comprehend spoken and written language. His earlier April 2017 VA examination similarly indicated the Veteran was not exhibiting any communication impairments as a result of his TBI. 

During his July 2021 VA examination, he reported difficulty reading and comprehending directions. He also reported difficulty writing down his thoughts and stated that it sometimes doesn't make sense after he has written his thoughts down. The July 2021 examiner additionally noted the Veteran's speech to be rambling and slightly histrionic, with frequent repetition, and found him to have difficulty focusing on answering specific questions. The examiner noted, however, that the Veteran was able to communicate complex ideas. A "1" is therefore assigned beginning February 23, 2021 for occasional impairment of comprehension or expression. 

Consciousness

At no point during the review period did the Veteran exhibit a persistently altered state of consciousness; therefore, the Board cannot assign a total impairment rating under this facet. 

Because the Veteran has been assigned a "2" for judgment, visual spatial orientation, and neurobehavioral facets beginning February 23, 2021, the Board finds an increased evaluation of 40 percent is warranted for the Veteran's TBI beginning February 23, 2021 because this was the date of his hearing and the date in which he first indicated that his symptoms had worsened since his previous 2017 VA examination. The Veteran has not, however, been assigned an impairment level higher than "0" prior to February 23, 2021. Consequently, the Board finds that an increased, compensable disability rating is not warranted for the service connected TBI prior to February 23, 2021. 

In addition, the Veteran has been separately evaluated for related conditions, to include his tinnitus, headaches, and left eye injury. The Veteran has reported experiencing dizziness that has resulted in frequent falls, nausea, and vomiting, and this is noted on his most recent July 2021 VA examination. Therefore, as will be explained below, the Board finds a remand appropriate to ascertain whether a separate rating is appropriate for a vestibular condition (apart from the Veteran's already service-connected tinnitus). The Veteran's VA treatment records do not reflect any further limitation due to the TBI.

The Board thus finds that the criteria for an increased compensable rating are not met or more closely approximated prior to February 23, 2021. 38 C.F.R. § 4.124a, DC 8045. In this regard, the Board has, in the above analysis, considered the facets of TBI-related impairment in DC 8045 (Impairment of memory, attention, concentration, executive functions; Impairment of Judgment; Impairment of Social Interaction; Impairment of Orientation; Impairment of Motor Activity; Impairment of Visual Spatial Orientation; Subjective Symptoms; Neurobehavioral Effects; Communication; and Consciousness). The evidence does not, however, show that the Veteran's disability has been manifested the impairment contemplated by a compensable rating. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

After February 23, 2021, however, the Board finds the evidence of record shows the Veteran's TBI manifested a level of impairment of at least 2, but no higher, in at least one of the specifically enumerated facets of TBI-related criteria listed in the table found at Diagnostic Code 8045. Therefore, a 40 percent rating for the Veteran's TBI is granted beginning February 23, 2021. The preponderance of the evidence is against a finding of a level of impairment of 3 or total in any of the enumerated facets of cognitive impairment for this period. Thus, the benefit of the doubt rule does not apply, and the appeal must be denied in excess of 40 percent. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Entitlement to a rating higher than 30 percent for a left eye injury is denied.

The Veteran contends his vision has deteriorated since his previous VA eye examination and that he is entitled to a higher evaluation. For the following reasons, the Board concludes the Veteran is precluded from a rating higher than 30 percent for his left eye injury. 

The Veteran's left eye blindness due to retinal detachment is rated at 30 percent under 38 C.F.R. § 4.79, Diagnostic Code (DC) 6006-6064, for retinopathy or maculopathy. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. 

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 former criteria, DC 6006 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009.

The General Rating Formula for DCs 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation.

Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted.

A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 

Under the revised criteria, DC 6006 instructs to evaluate 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. 

Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted.

Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091.

Review of the record does not reflect any incapacitating episodes under either definition. There is no mention of prescribed bed rest for the Veteran's left eye disability at any time. The Veteran's left eye condition has also been largely static during the pendency of the appeal with him only being treated as part of routine check-ups. There is no indication that he had a symptomatic episode severe enough to require a clinic visit for treatment purposes. The Board finds the preponderance of the evidence s against the presence of incapacitating episodes. The criteria for a rating in excess of 30 percent are not met on this alternative basis. 

Both the former and revised criteria provide for consideration of visual impairment. Here, the Veteran is service connected for his left eye but not his right eye. The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye, to include if the Veteran is unable to wear a prothesis. 38 C.F.R. § 4.75(d). 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 should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under DC 7800). 38 C.F.R. § 4.75(d).

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.

While the Veteran's May 2017 and June 2021 eye examinations indicates he has a documented right eye visual field defect in the form of a contraction of his visual field, his peripheral field of vision for his non-service-connected right eye is were measured to exceed 20 degrees in each meridian. In addition, his right eye corrected distance vision was measured at 20/40 in both May 2017 and June 2021. The Board finds that the preponderance of the evidence demonstrates that the right eye visual acuity exceeds 20/200 and the peripheral field of vision exceeds 20 degrees. As such, the right eye must be rated as 20/40. 38 C.F.R. § 3.383. Applying that to the Veteran's left eye disability, a rating in excess of 30 percent must be denied. 38 C.F.R. § 4.75(d).

The Veteran's corrected distance visual acuity of 20/40 of the right eye and 20/200 in the left eye warrants a 30 percent disability rating. In addition, the record is silent for any incapacitating episodes. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 30 percent for a loss of visual acuity. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to a separate rating for a separate vestibular disorder is remanded.

The Veteran has reported experiencing dizziness that has resulted in frequent falls, nausea, and vomiting, and this is noted on his most recent July 2021 VA examination. Specifically, the Veteran stated he had seizures, but as noted by the VA examiner, when he described his seizures, "it was mentioned as 'anxiety', but his symptoms are getting dizzy and nausea with vomiting and stomach cramping and 'passing out' there is no mention of shaking or seizure like activity." 

Given these symptoms, the Board finds a remand appropriate to ascertain whether a separate rating is warranted for a vestibular condition. Here, the Board notes that "dizziness/vertigo" was checked in the portion of the Veteran's July 2021 TBI examination addressing residual symptoms and diagnostic testing. The examination directed the examiner to complete an additional ear conditions questionnaire. An additional ear conditions questionnaire from this time period has not yet been associated with the claims file, therefore the AOJ is directed to obtain and add any missing, completed ear conditions questionnaires from 2021. If an ear conditions questionnaire has not yet been completed pursuant to the Veteran's July 2021 TBI evaluation, the AOJ is directed to schedule an ear conditions evaluation to ascertain whether a separate evaluation is warranted for a vestibular condition associated with the Veteran's TBI. 

The matters are REMANDED for the following action:

1. Obtain any previous ear conditions questionnaires that have not yet been added to the Veteran's claims file pursuant to the Veteran's July 2021 TBI evaluation. 

2. If an evaluation for the Veteran's vestibular disorder was not previously completed, obtain an ear conditions evaluation from an appropriate clinician regarding whether the Veteran has a vestibular disorder associated with his service connected TBI (or any other service-connected condition). The examiner is specifically asked to consider the Veteran's reports of symptoms, including dizziness, nausea, and frequent falls.

[NOTE: Whether the Veteran actually needs to be re-examined (meaning undergo another in-person examination) to provide these additional medical comments is left to the discretion of the clinician designated to provide the addendum opinion.]

To assist in making this important determination, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history.

When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale  

preferably citing to evidence in the file supporting conclusions and/or accepted medical authority.

 

 

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. B. Kucera

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.