Citation Nr: 21008560 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-34 387 DATE: February 17, 2021 ORDER A rating higher than 30 percent for a left eye disability is denied. A rating higher than 10 percent for exertional headaches is denied. A higher 30 percent rating, but no higher, for a head scar is granted. FINDINGS OF FACT 1. During the appeal period, the Veteran’s left eye disability has manifested in concentric contraction of the visual field with a remaining field of 5 degrees; and visual acuity of no worse than 20/40. 2. The Veteran’s exertional headaches are not shown to be manifested by characteristic prostrating attacks occurring on average once a month over the last several months. 3. The Veteran’s head scar covers an area of 6 square centimeters and has manifested in two or three characteristics of disfigurement throughout the appeal period; there is no evidence of visible or palpable tissue loss or that the scar is unstable or painful. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for left eye disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6015-6080, 6066. 2. The criteria for a rating higher than 10 percent for exertional headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8100. 3. The criteria for a 30 percent rating for head scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, DC 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2000 to February 2008 and from February 2009 to August 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board issued a decision granting a 30 percent rating for the left eye disability, and a 10 percent rating for the head scar; and denying a rating higher than 10 percent for exertional headaches. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in September 2020, the Court issued an Order vacating the Board’s decision and remanding it for action consistent with a Joint Motion for Partial Remand. The Board issues the following decision consistent with the Court’s Order. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Left eye disability The Veteran’s left eye disability has been assigned a 30 percent rating under DC 6015-6080, for benign neoplasm, causing impairment of visual field. The Veteran contends that the symptoms of his left eye disability warrants a rating higher than 30 percent. 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. The amendment altered the scope of disability specifically addressed. Under the former criteria, DC 6015 addressed benign neoplasms of the eyeball and adnexa. Under the revised criteria, DC 6015 addresses benign neoplasms of the eye, orbit and adnexa (excluding skin). There were no other substantive changes. Both the former and revised criteria instruct to separately evaluate visual and nonvisual impairment, e.g., disfigurement (DC 7800), and combine evaluations. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). Subject to the provisions of § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75(d). The 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). DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in the poorer eye is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Evaluation of visual field is based on the remaining field of vision in each eye. Under DC 6080, a 10 percent rating is warranted for unilateral concentric contraction of the visual field with remaining field of 16 to 60 degrees; or the unilateral loss of the temporal half, nasal half, inferior half, or superior half of visual field. A 20 percent rating is warranted for unilateral concentric contraction of the visual field with remaining visual field of 6 to 15 degrees. A 30 percent is warranted for unilateral concentric contraction of the visual field with remaining visual field of 5 degrees. Normal visual field extant at eight principle meridians is as follows: temporally is 85 degrees, down temporally is 85 degrees, down is 65 degrees, down nasally is 50 degrees, up nasally is 55 degrees, up is 45 degrees, and up temporally is 55 degrees. 38 C.F.R. § 4.76a, Table III. The extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. 38 C.F.R. § 4.77(a). The degrees lost are then added together to determine total degrees lost. The sum is divided by eight and represents the average contraction of the visual field. In June 2014, prior to his medical separation, an Informal Physical Evaluation Board Findings and Recommended Disposition found the Veteran had a left eye visual field defect, specifically a concentric contraction of visual field with remaining field of 5 degrees. At a January 2015 VA examination, corrected distance vision in the left eye was 20/40 or better. There was no anatomical loss, light perception only, extremely poor vision or blindness in the eye. External examination was within normal limits. An internal examination found an optic disc pallor in the left eye. Examination of the visual fields found contraction of the visual field in the left eye, with average remaining field of 6.75 degrees. Specific findings for remaining visual field in the left eye were as follows: 7 degrees temporally; 7 degrees down temporally; 7 degrees down; 5 degrees down nasally; 0 degrees nasally; 5 degrees up nasally; 12 degrees up; and 11 degrees up temporally, for a total remaining visual field for the left eye of 54 degrees. There was no loss of visual field, no scotoma, and no legal blindness based on visual field loss. The examiner found that the visual impairment, specifically visual field defect, was due to optic atrophy. The examiner noted that the Veteran was left with about 5 to 10 degrees of field in the center and is likely to have trouble with any peripheral vision to the left side. An October 2015 private medical record indicates decreased vision in the left eye secondary to a tumor. Visual acuity in the left eye was 20/25. The doctor noted a tiny central island of vision in the left eye representing chronic ischemic changes. The doctor stated that while the Veteran did not have a positive biopsy, he was relatively convinced that there was an optic canal meningioma. The examiner suggested radiation therapy to the orbital apex, which the Veteran received in January 2016. At an April 2018 VA examination, the examiner diagnosed optic atrophy, generalized contraction of visual field and tumor of the optic nerve. The Veteran reported that his vision had worsened since the surgery. The examiner stated that it was undetermined whether the tumor was benign or malignant, as the surgeon was unable to obtain a tissue sample of the optic nerve at the time of the Veteran’s surgery. On examination, corrected distance vision in the left eye was 20/40 or better. There was no anatomical loss, light perception only, extremely poor vision or blindness in the left eye. External examination was within normal limits. An internal examination found optic atrophy in the left eye. Examination of the visual fields found contraction of the visual field in the left eye, with average remaining field of 5.625 degrees. Specific findings for remaining visual field were as follows: 5 degrees temporally; 10 degrees down temporally; 5 degrees down; 5 degrees down nasally; 5 degrees nasally; 5 degrees up nasally; 5 degrees up; and 5 degrees up temporally, for a total remaining visual field for the left eye was 45 degrees. The examiner noted a loss of visual field as concentric peripheral visual field was less than 10 degrees. There was no evidence of scotoma. The examiner opined that the optic atrophy and optic nerve tumor caused the decrease in visual acuity or other visual impairment in the left eye. He also found that the left eye surgery left residuals including g complete loss of peripheral vision, decrease in color vision, defective visual acuity and continue headache and disfigurement from the top of the head to the base of the left eye. VA and private treatment records are consistent with the VA examination reports, indicating on-going optometry appointments for the Veteran’s left eye disability. Optometry records consistently reflect that the Veteran had 20/40 vision in the left eye. However, no further visual field testing is of record during the period on appeal. After review of the record, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 30 percent is warranted for the Veteran’s left eye disability. Evidence of record indicates that the Veteran had unilateral concentric contraction of the visual field with remaining field of 5 degrees or comparable to 5 degrees. A 30 percent rating is the highest rating available for unilateral concentric contraction of a visual field. Regarding visual acuity, the Veteran’s right eye is not service connected, therefore is measured as a 20/40 for purposes of rating (and in fact was measured as 20/40 throughout the appeal period). There is no evidence of impairment of visual acuity in the left eye that could warrant a higher rating. The Veteran’s left eye visual acuity was found to be 20/40 or better in all evidence of record. The April 2018 VA examiner noted in the report that a residual of the Veteran’s left eye surgery included “defective visual acuity.” However, on examination visual acuity in the left eye was found and noted ot be 20/40 or better. It is unclear from the record to what visual acuity defect the examiner was referring. But notably, no other evidence shows any visual acuity in the left eye other than 20/40. Regardless, 38 C.F.R. § 4.75(d) is clear that where only one eye is service connected, a rating higher than 30 percent will not be assigned based on visual impairment, which includes visual field and visual acuity defects. Any higher rating can only be assigned at that point based on disfigurement or symptomology other than visual impairment, which is addressed separately in this decision. The Veteran could be assigned a higher rating for malignant neoplasms of the eye, orbit, and adnexa under DC 6014. While the record indicates that it is unknown whether the Veteran’s optic nerve tumor may be malignant, it remains undetermined as no tissue sample was taken. An intrusive surgery would be needed to determine whether the tumor was benign or malignant. Even if it was confirmed that the tumor was malignant, there is no evidence that the neoplasm required therapy that was comparable to that used for systemic malignancies, i.e. systemic chemotherapy, x-ray therapy more extensive than to the area of the eye, or surgery more extensive than enucleation, which is required to warrant the higher 100 percent rating in that case. The Veteran underwent radiation treatment to the orbital area only. However, that does not constitute systemic treatment. 38 C.F.R. § 4.79, DC 6014. Accordingly, the preponderance of the evidence is against a finding that a rating higher than 30 percent is warranted for the Veteran’s left eye disability. Therefore, the claim must be denied. Exertional headaches The Veteran’s exertional headaches are currently rated 10 percent disabling under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated 0 percent. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent. The phrase “characteristic prostrating attacks” means migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, No. 16-3808, slip op. at 9 (Vet. App. Sept. 19, 2018). In other words, the term “prostrating” takes on its plain meaning of “lacking in vitality or will: powerless to rise: laid low.” Id. Moreover, lay evidence may be probative of the frequency, prolongation, and severity of headaches. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Regarding “economic inadaptability,” the Court has held that under DC 8100, a headache disorder need only be “capable of producing” economic inadaptability, and that this standard is different from the “unemployability” standard applicable in the context of determining entitlement to a total disability rating based on individual unemployability (TDIU). Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004); see also 38 C.F.R. §§ 3.340, 4.16 (setting forth the requirements for establishing entitlement to TDIU). Relevant to this appeal, the criteria for rating migraines are “successive.” Johnson, 30 Vet. App. 245. “Successive” criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). At a December 2014 VA examination, the Veteran reported headache pain, which worsened with physical activity or in the heat. The headaches lasted less than one day. The Veteran was on prescription medication for the headaches. During a flare-up of pain, the Veteran reported not being able to work for a number of hours. The examiner found no characteristic prostrating attacks of either migraine or non-migraine headache pain. The examiner diagnosed exertional headaches and opined that the Veteran would not be able to perform work which exposed him to overly hot or humid conditions on a consistent basis, or work that was physically demanding. An October 2015 private medical record noted bifrontal headaches that tended to be exertional. There was no positive phenomenon, photophobia, nausea, or vomiting associated with the headaches. At an April 2018 VA examination, the Veteran reported daily headache pain, lasting between one to two hours. The pain was pulsating or throbbing on both sides of the head. The Veteran also experienced sensitivity to light and changes in vision during headaches. The headaches were triggered by exertion. The Veteran’s treatment plan included taking medication. The examiner found no characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner opined that the headaches could limit activity, focus, and work. The Board notes that a review of the Veteran’s claim file shows no additional evidence that addresses the severity of the headache disability. VA medical records are consistent with the findings of the VA examination reports. After review of the record, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 10 percent is warranted for the Veteran’s exertional headaches. Both VA examiners after reviewing the Veteran’s complaints and in an in-person examination found that the Veteran’s symptomatology did not constitute characteristic prostrating attacks of headaches more than once every two months. In fact, both examiners explicitly found that the Veteran did not experience any prostrating attacks of migraine or non-migraine headache pain. While the Board is mindful of the Veteran’s ongoing complaints of headaches and indeed is sympathetic to his condition, the evidence of record simply does not document that the Veteran’s disability resulted in symptoms more nearly approximating characteristic prostrating attacks occurring on an average once a month over the last several months. The Veteran’s symptoms as described, specifically the inability to work when a headache occurs, in combination with the continual need for prescription medication to manage the headaches, does not demonstrate a condition whereby the Veteran is “powerless” or “laid low” once a month. The record indicates a limitation in activity, work or focus – not an inability to perform at all. The Board ultimately finds that VA examination to be highly probative and corroborated by both the medical and lay evidence of record. The Board has also considered whether an increased or additional disability rating is warranted under the additional diagnostic codes used to rate miscellaneous neurological diseases but finds that the Veteran has not been diagnosed with any of the alternate conditions listed therein, therefore, those diagnostic codes indicated are not applicable. Accordingly, the Board finds that the preponderance of evidence is against the assignment of a rating higher than 10 percent for exertional headaches, and the claim must be denied. Head scar The Veteran’s scar has been assigned a 10 percent rating under DC 7800, which contemplates scars or disfigurement of the head, face, or neck. Under DC 7800, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. Note (1) following DC 7800 identifies 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Scars that are unstable or painful are rated pursuant to DC 7804. A 10 percent rating is warranted for one or two scars that are unstable or painful. Note (1) defines an unstable scar as one where there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC when applicable. A post-surgery picture of the Veteran’s head in service notes that the length of the scar was 7 inches, or approximately 18 centimeters. At a December 2014 VA examination for headaches, the examiner noted the presence of a scar that was not painful or unstable, and which did not cover a total area greater than 39 square cm. The scar measured 20 cm by 0.3 cm. The Veteran was provided a VA examination for scars in April 2018. The examiner noted a scar on the left side of the head from the anterior edge of the ear cephalad to the top of the head. The examiner noted the scar measured 30 cm by 0.3 cm, but also indicated the total area covered was 6 cm squared. The examiner found hypopigmentation, and smooth, shiny texture of the scar. There was no elevation, depression, adherence to underlying tissue, or missing underlying tissue. There was also no gross distortion or asymmetry of the facial features or visible palpable tissue loss. The examiner found no limitation of function or functional impact of the scar. At an April 2018 VA examination for headaches, the examiner noted the presence of a scar that was not painful or unstable, and which did not cover a total area greater than 39 square cm. The scar measured 20 cm by 0.3 cm. At an April 2018 VA examination for the left eye, the examiner noted puffiness still existed on the left side of the face near the temple. The examiner indicated on the examination report that the surface contour of the scar was elevated or depressed on palpation. After reviewing the record, the Board finds that a 30 percent rating is warranted for the Veteran’s face scar. The evidence of record shows that the Veteran’s scar has shown two or three characteristics of disfigurement throughout the appeal period. Specifically, photo evidence and the VA scar examination report indicates that the scar measures more than 5 inches or 13 cm in length. The April 2018 VA eye examiner also found that the surface contour of the scar was elevated on palpation. Therefore, a 30 percent rating for two or three characteristics of disfigurement is warranted. The Board finds that the preponderance of the evidence is against the assignment of a rating higher than 30 percent for the Veteran’s scar at any time during the appeal period. While the April 2018 VA scar examiner found hypopigmentation and abnormal skin texture, the evidence does not show that the areas of such exceeded six square inches, or 39 square cm. Notably, the Veteran’s scar measured no more than 6 square centimeters by the VA scar examiner. This is smaller than the 39 square centimeters needed for hypopigmentation or abnormal skin texture to qualify as a characteristic of disfigurement. The evidence also does not show that the scar had visible or palpable tissue loss, or evidence of gross distortion or asymmetry of one feature or paired sets of features. Therefore, a rating higher than 30 percent is not warranted under DC 7800. The Board has also considered the other DCs pertaining to scars. However, the Veteran’s scar does not cover an area of 6 square inches (39 square cm) or greater. Further, there is no evidence that the scar is unstable or painful. Therefore, DCs 7801, 7802, and 7804 are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under DCs 7800-04. Accordingly, a higher 30 percent rating for the Veteran’s head scar is warranted during the entire appeal period. However, the preponderance of the evidence is against a rating higher than 30 percent. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.