Citation Nr: 21011797 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-40 393 DATE: March 2, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right bicep disability prior to December 23, 2019 is dismissed. Entitlement to a rating in excess of 20 percent for right bicep disability from December 23, 2019 is dismissed. Entitlement to an initial rating in excess of 10 percent for left bicep disability prior to December 23, 2019 is dismissed. Entitlement to a rating in excess of 20 percent for left bicep disability from December 23, 2019 is dismissed. Prior to March 10, 2017, entitlement to a compensable initial rating for left eye hypertropia with diplopia is denied. From March 10, 2017, entitlement to a 30 percent rating for left eye hypertropia with diplopia is granted; subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran withdrew the claim of entitlement to an initial rating in excess of 10 percent for right bicep disability prior to December 23, 2019 at his September 25, 2020 Board hearing. 2. The Veteran withdrew the claim of entitlement to a rating in excess of 20 percent for right bicep disability from December 23, 2019 at his September 25, 2020 Board hearing. 3. The Veteran withdrew the claim of entitlement to an initial rating in excess of 10 percent for left bicep disability prior to December 23, 2019 at his September 25, 2020 Board hearing.  4. The Veteran withdrew the claim of entitlement to a rating in excess of 20 percent for left bicep disability from December 23, 2019 at his September 25, 2020 Board hearing. 5. Prior to March 10, 2017, Veteran’s left eye diplopia is constant but correctable with spectacles that include special prismatic correction. Left eye corrected distance measured, at worst, 20/40. 6. From March 10, 2017, the Veteran’s left eye diplopia is constant, present in the central field to 20 degrees, and is not completely correctable with spectacles that include special prismatic correction. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to an initial rating in excess of 10 percent for right bicep disability prior to December 23, 2019 are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). 2. The criteria for withdrawal of the claim of entitlement to a rating in excess of 20 percent for right bicep disability from December 23, 2019 are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). 3. The criteria for withdrawal of the claim of entitlement to an initial rating in excess of 10 percent for left bicep disability prior to December 23, 2019 are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). 4. The criteria for withdrawal of the claim of entitlement to a rating in excess of 20 percent for left bicep disability from December 23, 2019 are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). 5. Prior to March 10, 2017, the criteria for a compensable initial rating for left eye hypertropia with diplopia are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.3, 4.75, 4.76, 4.78, 4.79, Diagnostic Code 6090-6066 (2019). 6. From March 10, 2017, the criteria for a 30 percent rating for left eye hypertropia with diplopia are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.3, 4.75, 4.76, 4.78, 4.79, Diagnostic Code 6090-6065 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1973 to December 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a virtual Board hearing before the undersigned. An April 2020 rating decision assigned 20 percent ratings for right and left bicep disabilities from December 23, 2019. As the rating periods regarding the issues of right and left bicep disabilities prior to December 23, 2019 and from December 23, 2019 are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). Withdrawn Appeals During his September 2020 Board hearing, the Veteran stated that he wished to withdraw his appeals as to the claims of entitlement to an initial rating in excess of 10 percent for right bicep disability prior to December 23, 2019; an initial rating in excess of 10 percent for left bicep disability prior to December 23, 2019; a rating in excess of 20 percent for right bicep disability from December 23, 2019; and a rating in excess of 20 percent for left bicep disability from December 23, 2019. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or during a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the claimant or by his or her authorized representative.  38 C.F.R. § 19.55.  The Veteran withdrew his appeals regarding the above-mentioned issues during his September 2020 Board hearing, and there remains no allegation of errors of fact or law for appellate consideration. As such, the Board does not have jurisdiction to review these claims. Thus, the appeals as to the claims of entitlement to an initial rating in excess of 10 percent for right bicep disability prior to December 23, 2019; an initial rating in excess of 10 percent for left bicep disability prior to December 23, 2019; a rating in excess of 20 percent for right bicep disability from December 23, 2019; and a rating in excess of 20 percent for left bicep disability from December 23, 2019 are dismissed.  Higher Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2019). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a compensable initial rating for left eye hypertropia with diplopia The Veteran seeks a higher rating for his left eye disability, which is currently rated as noncompensable under Diagnostic Code 6090-6066, which is analogous to a disease of the eye (Diagnostic Code 6090, Impairment of Muscle Function, Diplopia) under the criteria for impairment of visual acuity (Diagnostic Code 6066, Visual acuity in one eye 10/200 or better). 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.    As the amended regulations went into effect during the period on appeal, both the former and revised criteria under Diagnostic Code 6090-6066 will be considered when evaluating the Veteran’s left eye disability.  Both the former and revised criteria provide for consideration of visual impairment, which is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. § 4.75(a).  The amendments made no substantive changes to how visual acuity is rated.  Regarding visual field and muscle function examinations, the use of a Goldmann chart is no longer required.  There are otherwise no substantive changes to how those types of visual impairment are rated.    Under both the former and revised criteria for Diagnostic Code 6066, visual acuity, the next higher 10 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/50, and vision in the other eye is 20/50; when visual acuity in one eye (the poorer eye) is 20/70, and vision in the other eye is 20/40; or when vision in one eye (the poorer eye) is 20/100, and vision in the other eye is 20/40. 38 C.F.R. § 4.79. 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). Under Diagnostic Code 6090, the degree of diplopia and the equivalent visual acuity determine the disability rating. The rating is applicable to only one eye; a rating cannot be assigned for both diplopia and decreased visual acuity or field of vision in the same eye. When diplopia is present, and there is also ratable impairment of visual acuity or field of vision of both eyes, the ratings for diplopia are to be applied to the poorer eye while the better eye is rated according to the best-corrected visual acuity or visual field. 38 C.F.R. §§ 4.78, 4.79. When the diplopia field extends beyond more than one quadrant or more than one range of degrees, the rating for diplopia is based on the quadrant and degree range that provide the highest rating. 38 C.F.R. § 4.78(a)(2). When diplopia exists in two individual and separate areas of the same eye, the equivalent visual acuity is taken one step worse, but no worse than 5/200. 38 C.F.R. § 4.78(a)(3). Under Diagnostic Code 6090, diplopia in the central field (20 degrees or less) of any of the four major quadrants equates to 5/200 visual acuity. 38 C.F.R. § 4.79. From 21 to 30 degrees, diplopia in the down quadrant equates to 15/200 visual acuity, diplopia in either lateral quadrant equates to 20/100 visual acuity, and diplopia in the up quadrant equates to 20/70 visual acuity. Id. From 31 to 40 degrees, diplopia in the down quadrant equates to 20/200 visual acuity, diplopia in either lateral quadrant equates to 20/70 visual acuity, and diplopia in the up quadrant equates to 20/40 visual acuity. Id. In accordance with 38 C.F.R. § 4.31, diplopia that is occasional or that is correctable with spectacles is noncompensable. 38 C.F.R. § 4.79, Diagnostic Code 6090, Note.  Based on a review of the relevant evidence, the Board finds that, prior to March 10, 2017, a compensable initial rating for left eye hypertropia with diplopia is not warranted under Diagnostic Code 6090-6066, and from March 10, 2017, a 30 percent rating for left eye hypertropia with diplopia is warranted under Diagnostic Code 6090-6065. As the Veteran is only service-connected for his left eye, the visual acuity of his non-service-connected right eye is considered to be 20/40 for purposes of evaluating the left eye visual impairment. 38 C.F.R. § 4.75(c). Prior to March 10, 2017, the Veteran’s left eye diplopia was constant but correctable with spectacles that included special prismatic correction. During the July 2015 VA examination, the Veteran’s left eye corrected distance measured 20/40. The examiner noted that the Veteran’s prescribed eyeglasses with prismatic correction fully corrected the Veteran’s left eye diplopia. Post-service VA and private treatment records prior to March 10, 2017 reflect that the Veteran’s left eye diplopia was constant but also correctable with spectacles that included special prismatic correction, and that his left eye corrected distance measured, at worst, 20/40. Here, prior to March 10, 2017, the Veteran’s left eye diplopia is constant and correctable with spectacles containing a special prismatic correction, which Diagnostic Code 6090 instructs to evaluate as 0 percent. As the record is silent for evidence of visual acuity of at least 20/50 in the left eye or left eye diplopia that is not correctable with spectacles, a compensable initial rating for left eye diplopia is not warranted for the period on appeal prior to March 10, 2017.   From March 10, 2017, the Veteran’s left eye diplopia has been constant but not entirely correctable with spectacles that included special prismatic correction. During the March 10, 2017 VA examination, the examiner found that the Veteran’s spectacles with special prismatic correction only corrected his left eye diplopia when looking straight ahead. Left eye corrected distance measured 20/40, and the examiner diagnosed the Veteran with left eye diplopia at central 20 degrees, at 21 to 30 degrees in down, lateral , and up gaze, at 31 to 40 degrees in down, lateral, and up gaze, and at greater than 40 degrees in down, latera, and up gaze. The examiner indicated that, when the Veteran looked upward, downward, and from side to side, he continued to experience left eye diplopia despite the use of spectacles with special prismatic correction. Post-service VA and private treatment records from March 10, 2017 to the present also reflect constant left eye diplopia that was not completely correctable with spectacles with special prismatic correction, as well as left eye corrected distance measuring, at worst, 20/40. As to the March 10, 2017 VA examination finding of left eye diplopia at central 20 degrees, this corresponds to an equivalent visual acuity of 5/200, which provides the highest rating out of all four quadrants. 38 C.F.R. §§ 4.78, 4.79. Diplopia, pursuant to 38 C.F.R. § 4.78(b)(1), is only applicable to one eye. As the Veteran is only service-connected for his left eye, the visual acuity of his non-service-connected right eye is considered to be 20/40 for purposes of evaluating left eye visual impairment.  38 C.F.R. § 4.75(c). When applying visual acuity of 5/200 for the left eye and 20/40 for the non-service-connected right eye, under Diagnostic Code 6090-6065, a 30 percent rating is warranted for visual acuity for the Veteran’s service-connected left eye from March 10, 2017. The Board cannot factually ascertain from the lay and medical evidence at specific date prior to the March 10, 2017 VA examination that the Veteran’s left eye diplopia that was not completely correctable with spectacles with special prismatic correction. (continued on the next page) In sum, the Board finds that, prior to March 10, 2017, a compensable initial rating for left eye hypertropia with diplopia is not warranted under Diagnostic Code 6090-6066, and from March 10, 2017, a 30 percent rating for left eye hypertropia with diplopia is warranted under Diagnostic Code 6090-6065. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.