Citation Nr: 21014751 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 09-41 799 DATE: March 15, 2021 ORDER Entitlement to an increased rating for bilateral stromal opacities status post photorefractive keratectomy (bilateral eye disability) on an extraschedular basis is denied. FINDING OF FACT The Veteran’s bilateral eye disability manifests in symptoms that are contemplated in the rating schedule and do not present such an unusual or exceptional disability picture to warrant extraschedular evaluation. CONCLUSION OF LAW The criteria for entitlement to an increased rating on an extraschedular basis for a bilateral eye disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321, 4.75, 4.79. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2000 to June 2008. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a June 2008 rating decision. Procedurally, the Veteran was granted service connection for his bilateral eye disability in a June 2008 rating decision rated as noncompensable effective June 25, 2008, the date after discharge from service. The Veteran appealed the noncompensable rating, and his claim was denied in an April 2016 Board decision. The Veteran appealed, and the Court of Veterans Claims (Court) vacated the decision in October 2017 insofar as the Board denied referral on an extraschedular basis (1) based on the collective effects of multiple noncompensable service-connected disabilities, and (2) based on the bilateral eye disability alone. Of note, the Veteran’s claim for an increased rating on a schedular basis was deemed abandoned and, thus, is no longer on appeal to the Board. When the claim returned to the Board in December 2018, the Veteran’s claim for referral on an extraschedular basis based on collective effect was denied pursuant to the December 2017 amendment of 34 C.F.R. § 3.321(b)(1) clarifying that extraschedular consideration was not available based on collective effects of multiple service-connected disabilities. The prerequisites for referral for extraschedular consideration on the basis of the eye disability alone, however, were found to have been met and the claim was remanded for referral to the Director of Compensation Service. In September 2020, a memorandum was submitted to the Director of Compensation Service recommending a denial of an extraschedular rating. In November 2020, an advisory opinion was submitted by the Director, denying the claim for extraschedular consideration finding there was no impairment in or of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. Under 38 C.F.R. § 3.321(b)(1), an extraschedular disability rating is warranted upon a finding that “the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” This standard was elucidated in Thun v. Peake, 22 Vet. App. 111, 115 (2008), which, in pertinent part, described the first two steps in the analysis. Thun’s first step requires a comparison of the level of severity and symptomatology of the disability with the rating criteria for that disability. Thun’s second step then requires a determination as to whether the veteran’s exceptional symptomatology causes marked interference with employment, frequent periods of hospitalization, or other related factors (functional impairment). Regarding the first step, the Court in Long v. Wilkie noted that because this determination is, by nature, fact-bound and highly contextual, it should be approached as a totality of the factors inquiry that considers whether the veteran’s symptomatology presents an impairment so exceptional that the rating schedule is not capable of assessing it in the first instance. No. 16-1537 (Dec. 30, 2020). In other words, Thun’s first step is not met simply because the symptoms of the disability are not considered in the rating criteria for that disability; rather, it is met when the impairment cannot be evaluated by the rating schedule. Id. The Court noted that this approach was not new, and that it was used to reach the holding in Doucette v. Shulkin, 28 Vet. App. 366 (2016), where it found the veteran’s complaints were “precisely the effects that VA’s audiometric tests are designed to measure” and therefore could not be deemed exceptional. Id. at 369. Of note, the Board is unable to determine whether the Veteran is entitled to an extraschedular rating in the first instance but must first refer consideration to the Director of Compensation Service, which has been done in this case. The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct a de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). The evidence shows that the Veteran’s symptoms are glare at night with “halos” and “starbursts.” Throughout the appeal period, which begins June 25, 2008, the Veteran has consistently complained of glare at night which makes driving difficult. In his February 2010 VA examination, the Veteran had 20/20 corrected visual acuity bilaterally and complained of glare at night. In a May 2011 statement, the Veteran contended his disability had worsened, especially since it affected his job as a courier. As a courier, the Veteran must drive frequently at night, and he sees glares, halos, and starbursts in front of his eyes. The vehicle must be totally dark in order to alleviate symptoms. Based on this statement, another VA examination was conducted in August 2013. In that examination, the Veteran’s listed diagnosis was corneal opacities. His corrected distance visual acuity was 20/40 or better. The examiner explained that the opacities/corneal scarring do not cause visual impairment, but it does cause glare. The examiner found the Veteran experienced no incapacitating episodes. The examination findings are consistent with the treatment records. In October 2009, the Veteran complained of problems with vision at night as he sees flares and stars that make him hesitant to drive at night. In November 2009, it was noted that he was experiencing stars and halos in his eyes at night. The symptoms were worse at night and were exacerbated by lights on inside the vehicle. In February 2010, he endorsed glare and sunbursts at night with no improvement with sunglasses. The evidence reflects that the Veteran’s symptoms are glare at night with accompanying halos and starbursts. These symptoms cause an impairment driving at night, and he must accommodate by keeping his vehicle dark while driving at night. Such an impairment is one that would reasonably be expected with symptoms of glare sensitivity – which is reflected by Diagnostic Code 6036, providing for a minimum 10 percent rating if there is pain, photophobia, and glare sensitivity. Certainly, the listed symptom of glare would necessarily encompass the expected resulting impairment (i.e., difficulty driving at night due to bright lights) even if not expressly stated in the criteria. This is consistent with the Court’s holding in Doucette, which found that the schedular rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday environment. 28 Vet. App. at 369. While the Veteran is not entitled to a compensable rating under Diagnostic Code 6036 as the evidence does not show he also experiences pain and photophobia, his symptoms are indeed contemplated by the Code. It is emphasized that this is a “totality of the factors” inquiry as to whether full symptomatology, as a whole, presents an impairment so exceptional that the rating schedule is not capable of assessing it. See Long, No. 16-1537 (Dec. 30, 2020). To that end, while the halos and starbursts are not expressly listed in the schedular criteria, the resulting impairment (difficulty driving at night) is the same as glare sensitivity. Thus, the Board does not find the Veteran’s full symptomatology to be so severe or exceptional as to render the schedular criteria incapable of assessing it. As the Veteran’s disability does not present such an exceptional or unusual disability picture and his symptoms are adequately encompassed by the rating criteria, the first factor in Thun has not been met and it is unnecessary to consider the second factor, whether his condition causes marked interference with employment. The Veteran is not entitled to an extraschedular evaluation for his bilateral eye disability and his claim is denied. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, Associate 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.