Citation Nr: 21014962 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-57 879 DATE: March 16, 2021 ORDER A rating in excess of 30 percent for diplopia, due to limited muscle function, is denied. FINDING OF FACT The Veteran’s constant diplopia is manifested centrally at 20 degrees and is considered the equivalent to a visual acuity of 5/200; no more severe manifestations are shown in the record. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for diplopia, due to limited muscle function, are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.79, Diagnostic Code (DC) 6090. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from July 1989 to June 1996. This matter is on appeal before the Board of Veterans’ Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board recognized that the Veteran requested a Board videoconference hearing, which was scheduled for a date in December 2019. The Veteran was notified of the hearing date in October 2019. He did not appear at the hearing, and did not provide a reason or request that the hearing be rescheduled. The Board will, therefore, move forward with the decision at this time. By way of history, the Veteran was initially awarded service connection for bilateral diplopia by way of a February 1997 rating decision. An initial 30 percent rating was assigned, effective June 23, 1996. The Veteran filed this claim for increase in February 2016. The 30 percent rating was continued by the April 2016 rating decision on appeal. Initially, the Board notes that VA’s schedule for rating eye disabilities was revised effective May 13, 2018, which is during the pendency of this appeal. VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to May 13, 2018 and both the old and new rating criteria from May 13, 2018. The criteria that is more favorable to the Veteran will be applied. The Veteran’s diplopia rating is assigned under 38 C.F.R. § 4.79, Diagnostic Code (DC) 6090. For rating on the basis of muscle impairment, the old regulations provide that evaluations are based on the degree of diplopia and the equivalent visual acuity, and that the rating for diplopia is applicable to only one eye. Separate ratings are not permitted for both diplopia and decreased visual acuity or field of vision in the same eye under either the former or new version. Additionally, the regulations allow for an adjustment to the best-corrected visual acuity to account for diplopia. 38 C.F.R. § 4.78(b)(3) (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). Under the old regulations, if diplopia manifests centrally at 20 degrees, it is rated equivalent to a visual acuity of 5/200. 38 C.F.R. § 4.79, DC 6090(a). This is the highest equivalent visual acuity permitted. At the outset, it is noted that visual impairment is rated based on the consideration of three factors: (1) impairment of visual acuity (excluding developmental errors of refraction), (2) visual field, and (3) muscle function. 38 C.F.R. § 4.75(a). However, examinations of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. 38 C.F.R. § 4.75(b). Central visual acuity is to be evaluated based on corrected distance vision with central fixation, even if a central scotoma is present. However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, the visual acuity of the poorer eye is to be evaluated using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. 38 C.F.R. § 4.76(b). When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the evaluation is determined by separately evaluating the visual acuity and visual field defect (expressed as a level of visual acuity) and combining the evaluations under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.77(c). Under the new criteria, visual impairment is to be evaluated under the General Rating Formula for Diseases of the Eye, based on either visual impairment or on incapacitating episodes, whichever results in a higher evaluation. Thus, the primary difference between the former and revised criteria, as they pertain to this case, is the potential consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes as to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldman chart is no longer required. Under old 38 C.F.R. § 4.79 DC 6066 (2018), for visual acuity in one eye of 20/40 and 20/100 or better in the other eye, a 10 percent evaluation is warranted. A 20 percent rating is warranted for visual acuity in one eye of 20/50 and 20/70 in the other eye, or a combination in one and the other eye of 20/50 and 20/100; 20/40/ and 20/200; or 20/40 and 15/200. For visual acuity in one eye 10/200 (3/60) or better, a 30 percent disability rating is warranted for vision in the other eye of 20/40, 20/50, or 20/70. A 40 percent disability rating is warranted for vision in one eye 10/200 (3/60) or better and in the other eye 20/50, or 20/70. (6/15). 38 C.F.R. § 4.79 (2018). Under DC 6065, for visual acuity in one eye of 5/200, a 30 percent rating is assigned with visual acuity in the other eye of 20/40. With visual acuity in one eye of 5/200, and visual acuity in the other of 20/50, a 40 percent rating is assigned. The Veteran’s disability can also be rated under the criteria for visual field loss. Under old 38 C.F.R. § 4.76a, Table III (2018), the normal visual field extent at the 8 principal meridians totals 500 degrees. The normal for the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. Under old DC 6080, a 10 percent rating is assigned for a unilateral scotoma; with concentric contraction of visual field with remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45 degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally. A 30 percent rating is assigned for concentric contraction of visual field with remaining field of 31 to 45 degrees unilaterally; with remaining field of 5 degrees unilaterally; loss of inferior half of visual field bilaterally; loss of temporal half of visual field bilaterally; and homonymous hemianopia visual field defects. A 50 percent rating is assigned for concentric contraction of visual field with remaining field of 16 to 30 degrees bilaterally. A 70 percent rating is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees bilaterally. A 100 percent rating is assigned for concentric contraction of visual field with remaining field of 5 degrees bilaterally. The Veteran can also be evaluated under DC 7800 for disfigurement, although the medical evidence of record does not reveal that such is for application under the facts of this particular case. Lastly, the Rating Schedule affords higher evaluations based upon the presence of incapacitating episodes. The Rating Schedule defines an incapacitating episode as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, General Rating Formula for DCs 6000 through 6009, Note. The Veteran does not claim, and the medical evidence does not show incapacitating episodes in this case. A review of the Veteran’s claims file reveals he was examined by a private clinician, T.H.B., O.D., P.C., in February 2016. The primary complaint noted was blurred vision due to diplopia. Unaided acuities were noted in the report as 20/50 distance and 20/70 near on the right, and 20/40 distance and 20/50 near on the left. The report suggests Goldmann testing was utilized, but there are no numerical findings with this report to assist in the evaluation of the Veteran’s eye disability. The Veteran was then afforded a VA examination in March 2016. The internal eye exam was normal, bilaterally, and external eye exam was normal, bilaterally, but for dermatochalasis noted in each eye. The examiner confirmed that the Veteran has no visual field defect. Distance vision was 20/40 or better in both eyes, both corrected and uncorrected, at that time. The Goldmann Perimeter testing confirmed the presence of diplopia at central 20 degrees. VA has recognized this as a visual equivalent of 5/200. The 30 percent evaluation assigned is based upon this finding. The Veteran has not suggested why he feels a rating in excess of 30 percent is warranted. While the examiner indicated the diplopia was occasional, the report also indicates it is present daily. Further, the Veteran’s subsequent statements include confirmation that the diplopia is present constantly. Moreover, the RO, in the April 2016 rating decision, found the diplopia to be constant. The Veteran has undoubtedly made it clear he was troubled by the examiner’s mention of his diplopia as occasional; however VA recognizes the condition is present constantly. The Veteran was again evaluated by T.H.B., O.D., P.C., in February 2017. The Veteran again reported constant double vision. He indicated blurred vision both at distance and near and indicated his glasses are not working. Unaided acuities at this time were noted as 20/60 distance and 20/200 near on the right, and 20/40 distance and 20/100 near on the left. The report indicates, “Using the Goldmann perimeter chart diplopia is present in greater than 40 degrees in both the down and lateral positions of gaze. This diplopia is not correctable with special prismatic correction.” This report also indicated that the Veteran’s bilateral muscle deviation is “too great to resolve with prism correction. Because of the vertical deviation on lateral gaze the only option is to occlude his non-dominant eye. This in essence renders him blind in one eye.” These findings are consistent with VA’s rating the Veteran’s disability as the visual equivalent of 5/200. The Veteran was again afforded a VA examination in April 2017. Visual acuity testing at this time indicated uncorrected distance vision of 20/70, bilaterally; uncorrected near vision of 20/100, bilaterally; corrected distance vision of 20/50 on the right and 20/40 or better on the left; and corrected near vision of 20/40 or better, bilaterally. Diplopia was again confirmed as present at central 20 degrees from the Goldmann perimeter testing. This examiner confirmed the diplopia as constant, and not correctable. Based upon this finding, the examiner confirmed there is a visual field defect, but noted that there is no contraction of a visual field and no loss of a visual field. Additional conditions of the eye had presented by that time, including ptosis, cataracts, and a retinal condition, but these were not indicated as related to the service-connected diplopia. The RO then continued the 30 percent rating based upon finding the Veteran’s disability as a visual equivalent to 5/200 in one eye with visual acuity of 20/40 or better in the other eye. In October 2017, on his VA Form 9, the Veteran continued to report only that he disagreed with the VA examiner’s characterization of his condition as “occasional” and again confirmed he wants the condition to be recognized as present “all the time.” Also, the only argument provided by the Veteran’s representative in the February 2021 brief is the incorrect characterization of the condition as occasional. As noted above, VA has recognized the Veteran’s diplopia as present constantly throughout this appeal period. The constant presence, however, does not provide a basis for an award in excess of 30 percent under any of the relevant rating criteria. Based upon the foregoing, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran’s service-connected diplopia. The constant condition is rated as the visual equivalent of a 5/200. Under the old regulations, if diplopia manifests centrally at 20 degrees, as here, it is rated equivalent to a visual acuity of 5/200. 38 C.F.R. § 4.79, DC 6090(a). This is the highest visual acuity equivalent permissible. With visual acuity in the other eye at 20/40 or better, the Board finds there is no basis in this case for awarding a rating in excess of 30 percent under either the old or new criteria. (Continued on the next page)   Accordingly, this claim for a rating in excess of 30 percent for the service connected diplopia must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.