Citation Nr: 21069998 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 07-19 557 DATE: November 22, 2021 ORDER An extraschedular rating higher than 30 percent for left eye chorioretinal scar prior to November 4, 2009, is denied. FINDING OF FACT Prior to November 4, 2009, the Veteran's left eye chorioretinal scar manifested as profound visual impairment, including severely impaired visual acuity that prevented Goldmann visual field testing; these symptoms are contemplated by the rating schedule. CONCLUSION OF LAW Prior to November 4, 2009, the criteria for an extraschedular rating higher than 30 percent for left eye chorioretinal scar have not been met. 38 U.S.C. § 1155; 38C.F.R. §3.321. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1956 to June 1982. This matter comes to the Board from a May 2006 rating decision. The Veteran testified at a Board hearing in January 2011. Most recently, the Board adjudicated this appeal in a March 2020 decision, which denied an initial schedular rating higher than 30 percent for left eye chorioretinal scar prior to November 4, 2009, and higher than 40 percent thereafter, denied an extraschedular rating higher than 40 percent for left eye chorioretinal scar as of November 4, 2009, and denied a referral for consideration of an extraschedular rating prior to November 4, 2009, for left eye chorioretinal scar. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 order, the Court granted a July 2021 joint motion for partial remand (JMR) that vacated the portion of the March 2020 Board decision that denied an extraschedular rating for left eye chorioretinal scar prior to November 4, 2009, and remanded the claim to the Board for action consistent with the terms of the JMR. The Veteran did not appeal those portions of the Board's decision denying his claims of entitlement to an initial schedular rating in excess of 30 percent, for the period prior to November 4, 2009, and in excess of 40 percent beginning therefrom, for a chorioretinal scar of the left eye, as well as an extraschedular rating in excess of 40 percent as of November 4, 2009 for a chorioretinal scar of the left eye. After a July 2021 post-Court notification letter from the Board, the Veteran's representative initially requested until October 11, 2021 to submit additional argument. Nothing else has been included in the record. Later in August 2021, the Veteran submitted a response stating that he had no additional evidence or argument to submit, waiving any remaining time to submit additional evidence or argument. Thus, the Board will proceed with addressing the appeal. An extraschedular rating higher than 30 percent for left eye chorioretinal scar prior to November 4, 2009 The Veteran was originally granted service connection for left eye chorioretinal scar in the May 2006 rating decision on appeal. At that time, this disability was rated 30 percent effective January 27, 2006. The Veteran appealed that initial rating. During the pendency of this appeal, the Veteran was awarded special monthly compensation (SMC) at the K level based on loss of use of left eye effective January 27, 2006. See April 2016 Board decision; see also July 2016 rating decision. In a February 2013 decision review officer (DRO) decision, the Veteran's disability rating was increased to 40 percent effective February 5, 2013, based on visual impairment in both visual acuity and visual field. In January 2018, VA requested an administrative review by the Director of Compensation Services and recommended that a 40 percent extraschedular rating be assigned from January 27, 2006, the date of the Veteran's claim. The February 2018 Administrative Review by the Director of Compensation Services instead assigned an effective date of November 4, 2009, for the 40 percent extraschedular rating, finding that no unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria as impractical for the entire period from January 27, 2006, to February 5, 2013. However, evidence does show that the left eye vision deteriorated as early as November 4, 2009. This was effectuated in a February 2018 rating decision. As noted above, the issue before the Board is limited to entitlement to an extraschedular rating higher than 30 percent for left eye chorioretinal scar prior to November 4, 2009, to include whether referral to the Director of Compensation Services is warranted. As the February 2018 Administrative Review by the Director of Compensation Services considered the entire appeals period before granting and extraschedular rating beginning on November 4, 2009, the question of whether such a referral is warranted is moot. Below, the Board will address whether an extraschedular rating is warranted. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. Here, the Veteran contends that he is entitled to an extraschedular rating for his left eye chorioretinal scar during this period because his visual impairment was so severe that it prevented Goldman visual field testing. In an April 2010 email, a VA ophthalmologist explained that the Veteran's extremely limited vision prevented reliable Goldmann visual field testing at the time of the October 2009 eye examination and so it was not performed. There is no indication that the Veteran had any additional eye symptoms that prevented visual field testing. Likewise, the Veteran has not described any other symptoms of left eye chorioretinal scar beyond visual impairment. Therefore, his inability to undergo the Goldmann visual field testing is not a separate symptom, but rather the result of his symptom of severely impaired visual acuity. Goldmann visual field testing itself measures impairment of visual field. A combined rating for impairment of both visual acuity and visual fields is subject to the schedular maximum rating available when only one eye is service connected. See 38 C.F.R. § 4.80 (2008); 38 C.F.R. § 3.383 4.75(d) (2009); but see 38 C.F.R. § 3.383 (paired organ rule). (Continued on the next page) In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. Visual impairment is rated bast on three categories: visual acuity, visual field, and muscle function. In both applicable versions of the rating criteria, impaired visual acuity is rated under diagnostic codes 6061-6066 based on the best corrected distance vision. 38 C.F.R. §§ 4.75, 4.79, 4.84a (2008); 38 C.F.R. §§ 4.76, 4.79 (2009). Impairment of visual fields is rated under DC 6080-6081 based on the average concentric contraction of the visual field of each eye; asymmetric impairments are converted to their visual acuity equivalents. 38 C.F.R. §§ 4.76, 4.84a (2008); 38 C.F.R. §§ 4.77, 4.79. Impaired muscle function is rated under DC 6090-6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.77, 4.84a (2008); 38 C.F.R. §§ 4.78, 4.79. Thus, the rating schedule adequately contemplates the Veteran's disability, which is characterized by profound visual impairment in the left eye. Here, the Veteran's left eye chorioretinal scar manifestations are reasonably contemplated by Diagnostic Codes 6061-6091. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Houbeck 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.