Citation Nr: 21005410 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-25 208A DATE: February 1, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right orbital fracture residuals with photophobia is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1980 to May 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This claim has been previously before the Board in September 2015, September 2017, and May 2019. In September 2015, the increased eye rating claim (and claims of service connection for headaches, traumatic brain injury, and a balance disorder) were remanded for a Board hearing. In September 2017, the claims were remanded for additional development, including obtaining records and VA examinations/opinions. In May 2019, the increased eye rating claim was remanded for Social Security Administration (SSA) treatment records and an addendum medical opinion. In an August 2018 rating decision, service connection for migraine headaches was granted, with an initial 50 percent rating. Entitlement to TDIU was established effective February 22, 2012. The Veteran is additionally service-connected for a pain disorder associated with his headaches and eye disability, rated 30 percent from October 16, 2012. The Veteran testified at a personal hearing in November 2016 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. Entitlement to a rating in excess of 10 percent for right orbital fracture residuals with photophobia is remanded. The interplay between the rating criteria for the Veteran’s service connected right orbital fracture residuals with photophobia and his service-connected migraines with imbalance has posed challenges in determining how to properly compensate the Veteran’s severe photophobia. His severe photophobia is not adequately compensated by a rating based on visual impairment (visual acuity, diplopia, visual field defect), and the rating schedule does not include a diagnostic code that specifically addresses severe photophobia. DC 6036 (status post corneal transplant) provides a minimum 10 percent rating for pain, photophobia, and glare sensitivity. However, this 10 percent rating does not contemplate the severity of the Veteran’s photophobia, as will be addressed more below. He is currently in receipt of a 10 percent rating under DC 6009 (unhealed eye injury) based on incapacitating episodes. However, following the grant of service connection for migraines, with a 50 percent rating based on prostrating attacks, the Board finds that a separate/increased rating based on incapacitating episodes violates the rule against pyramiding. As the Veteran’s severe photophobia is not specified in the rating criteria for DC 6009, VA must consider whether an extraschedular rating is warranted under 38 C.F.R. § 3.321 (b)(1). Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board cannot adjudicate this question in the first instance; therefore, a remand is now required to refer this issue to the VA Director of Compensation Service for consideration of an extraschedular evaluation based on a disability with effects that are not captured by its schedular evaluation. 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 rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran is currently in receipt of a 10 percent rating for right orbital fracture residuals with phobophobia under Diagnostic Code (DC) 6009 (unhealed eye injury) based on incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks during the prior 12 months. Notably, this rating was provided in a rating decision prior to the Veteran’s grant of service connection for migraines. His migraines were subsequently evaluated as 50 percent disabling under DC 8100. Under DC 8100, a 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The United States Court of Appeals for Veterans Claims (CAVC) recently provided considerable guidance in the evaluation of headache disabilities pursuant to DC 8100. Specifically, CAVC defined characteristic prostrating attacks as migraine attacks “that typically produce powerlessness or a lack of vitality.” Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). It further defined prostrating as “powerless to rise: laid low.” Id. (citing Webster’s Third New International Dictionary of The English Language Unabridged 376 (1966)). 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 6000 (iritis) and DC 6009 (unhealed eye injury) instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009, under which symptoms are to be rated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 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. Notably, an “incapacitating episode” under the former criteria requiring bedrest and treatment is similar to CAVC’s definition of “prostrating attacks” of migraine symptoms resulting in a “lack of vitality” and “laying low.” The Board finds that separate ratings for “incapacitating episodes” from the former eye criteria and “prostrating attacks” from the migraine criteria would result in impermissible assignment of two ratings under various diagnostic codes where the symptom manifestation (laid in a bed, in the dark, due to pain and light sensitivity) is overlapping. Although the Veteran’s photophobia is not specifically contemplated by the 50 percent rating for his migraines, the rating criteria for migraines and a rating based on incapacitating episodes would violate the Rule Against Pyramiding by rating the Veteran’s incapacitation (staying home in the dark, in bed, during painful migraines caused by photophobia) under more than one diagnostic code. Under the revised criteria, DC 6000 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye, which in turn instructs the rater to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. 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. The Board notes that the revised definition of incapacitating episodes, based on a review of the available record, is less helpful for the Veteran in this case. It does not provide him with an avenue to be appropriately rated for his severe photophobia. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. During his November 2016 Board hearing, the Veteran testified that he had a right eye injury in service that caused severe photophobia. Light, both natural and artificial, caused any “aura,” which then caused headaches. During a migraine he had to go to a “darkened room or lay on the floor just finds ways to get comfortable.” When asked about lighting in his home, he stated he “kind of lived in the dark” but had some soft lights for when visitors came over. He also stated he could not watch television, so he would put a sheet over the television so that he could listen to it. He stated he was first diagnosed with severe photophobia by VA in 2006 following two years of severe headaches requiring emergency room visits. He was being treated in a “low vision” clinic through VA due to his severe photophobia, but that there was nothing they could do but offer him dark glasses to wear. In May 2012, the Veteran attended a VA eye examination and was diagnosed with bilateral photophobia, bilateral cataracts, and a prior right orbital fracture in service. He complained of light sensitivity. His corrected distance vision was 20/40 or better bilaterally. He was able to complete external and internal eye examinations. His internal eye examination was normal throughout. He had trace cataracts on external evaluation. He did not have a visual field defect on testing. The examiner found that the Veteran had suffered incapacitating episodes due to “migraine and dizziness due to eye condition” of less than 1 week in the prior 12 months. Veteran “feels that photophobia contributes to migraines and dizziness.” He also stated that there were “many days” where he felt as though he “could not function.” A March 2014 SSA decision included the Veteran’s report that, due to his light sensitivity, he did not leave the house unless absolutely necessary, and he wore tinted glasses during his SSA hearing. He was noted to have the “residual functional capacity to perform sedentary work [as defined by SSA] except he need[ed] to be in a dark room lying 2-3 hours on a usual basis and sometimes up to four days continuously.” The Veteran alleged that he was unable to work because he was “extremely sensitive to light and experience[d] migraine headaches, dizziness, and nausea.” He had been prescribed tinted/glare lenses with a frame that blocked out upper and side extraneous light for full occlusion. The SSA found that the Veteran was disabled under their criteria. At a January 2018 VA headache examination the Veteran presented with “intense photophobia” and migraine. He wore prescription sunglasses to keep the light out. In the early 1990s he was “plagued by more headaches.” He stopped working in 2000 due to intense photophobia. He stated he had daily headaches, “accompanied [by] nausea, pain in his neck, photophobia, and poor appetite.” The Veteran’s symptoms were listed as pulsating or throbbing head pain, pain localized to one side of the head, pain worsens with physical activity, nausea, vomiting, sensitivity to light, sensitivity to sound, and “smells bother him.” The remarks section includes that the Veteran had “photophobia at the onset of his right orbital fracture when he was seen in the emergency room...initially, the emergency physician thought that the Veteran had acute traumatic iritis.” His photophobia had persisted over the years. “This photophobia is significant because it was due to the blunt trauma of the eye and not due to persistent migraine headaches. The headaches are a result of the Veteran’s ongoing and constant photophobia. This light sensitivity triggers the Veteran’s headaches now.” It was more likely than not that the Veteran had developed “recalcitrant photophobia” due to his right eye injury, and his “recalcitrant photophobia” more likely than not caused his chronic migraine disorder, which was “manifested by dizziness, imbalance, and incoordination.” A January 2018 VA eye examination noted that the Veteran’s corrected distance vision was 20/40 bilaterally (noncompensable), but tonometry testing, anterior segment evaluation, and visual fields “could not be completed due to severe photophobia, nausea, etc.” He was diagnosed with bilateral severe photophobia. The examiner selected that the Veteran had at least 6 weeks of incapacitating episodes in the prior 12 months. The incapacitating episodes were of “photophobia” causing the Veteran to be “unable to leave his home, unable to socialize and/or maintain employment secondary to severe photophobia.” His severe photophobia resulted in functional impairment such that he was precluded from obtaining or maintaining an occupation. “Photophobia is the main trigger for his chronic migraines which are also incapacitating.” The “photophobia was the main trigger for his chronic migraines, which were incapacitating.” His photophobia had worsened over the “past 30 years.” He was unable “to leave his home” and had friends and family do his grocery shopping and cooking. He stated he had not been to a store since 2006. He did not have a driver’s license and could not comfortably use a computer, both due to his photophobia. On January 18, 2019, the Veteran reported he had not left his house for a week due to “horrible vertigo.” He also thought his light sensitivity was getting worse. In May 2019, the Board remanded the increased rating claim for an addendum opinion to address whether the Veteran’s service-connected eye disability alone resulted in incapacitating episodes under the former and/or revised criteria. A November 19, 2019 addendum opinion noted that based on the rating criteria definition, that the Veteran’s eye condition did not “require a clinic visit to a provider specifically for treatment purposes” for each migraine he experienced secondary to photophobia. He was “homebound during an episode but does not require a specific trip to the provider for each episode.” Additionally, since the photophobia caused the migraines, which caused the incapacitating episodes, it “cannot be said that it is secondary to the right eye disability alone.” The examiner opined that the right eye disability caused the migraines, and the migraines caused “incapacitating episodes based on the old definition.” The right eye disability did not “directly cause the incapacitating episodes.” As noted above, the Board cannot provide a rating for the Veteran’s right eye injury residuals with photophobia based on incapacitating episodes, as it would result in a second rating for the same manifestation of symptoms as those contemplated by the 50 percent rating for migraines. However, the Board finds that the available schedular evaluation does not adequately address the Veteran’s severe photophobia. His severe photophobia results in marked interference with employment because he is unable to drive, unable to work under harsh indoor lighting or outdoor lighting, or use a computer or other backlit screen. As such, the Board finds that the case must be referred to the Director of Compensation Services to determine whether, to accord justice, the Veteran’s disability (severe photophobia) picture requires the assignment of an extraschedular rating. The matters are REMANDED for the following action: (Continued on the next page)   1. Refer the Veteran’s claim for an increased rating for right eye injury residuals with photophobia to VA’s Director of Compensation Service for extraschedular consideration. 2. After completing the development requested above, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, 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.