Citation Nr: 21042624 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 05-34 603 DATE: July 13, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for bilateral visual impairment post facial trauma with left ptosis, left hypertropia, left quadranopsia, and right temporal field defect, to include on an extraschedular basis, is denied. FINDING OF FACT Throughout the period on appeal, the average concentric contraction of the Veteran's visual field was, at worst, 31 degrees in the right eye and 36 degrees in the left eye. Corrected distance vision was, at worst, 20/40 in the right eye and 20/70 in the left eye. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for bilateral visual impairment post facial trauma with left ptosis, left hypertropia, left quadranopsia, and right temporal field defect are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code 6080. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1968 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and was previously remanded by the Board in February 2008, April 2010, September 2012, October 2013, March 2017, April 2018, August 2020, and February 2021. The Board's February 2021 remand directed the RO to obtain any outstanding VA and private treatment records and to schedule the Veteran for a new VA examination to assess the current severity of his service-eye bilateral eye disability. Outstanding treatment records were obtained, and the Veteran underwent a VA eye examination in April 2021. The Board finds that there has been substantial compliance with its February 2021 remand directives, and it will proceed with adjudication of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). 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; 38 C.F.R. § 4.1. 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. 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. 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 disability rating in excess of 50 percent for bilateral visual impairment post facial trauma with left ptosis, left hypertropia, left quadranopsia, and right temporal field defect, to include on an extraschedular basis The Veteran seeks a higher disability rating for his service-connected bilateral eye disability, which is currently rated as 50 percent disabling under Diagnostic Code 6080 (Visual field defects). 38 C.F.R. § 4.79, Schedule of ratings eye. Additionally, the Veteran contends that his bilateral eye disability requires referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation. 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. 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. With regard to 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, a 60 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/200, and vision in the other eye is 20/100; when visual acuity in one eye (the poorer eye) is 15/200, and vision in other eye is 20/100; or when visual acuity in one eye (the poorer eye) is 10/200, and vision in the other eye is 20/100. 38 C.F.R. § 4.79. Regarding impairment of the field of vision, 38 C.F.R. § 4.76a, Table III, provides that the normal visual field extant at the 8 principal meridians totals 500 degrees. The normal values 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 principal meridians. Under both the former and revised criteria for Diagnostic Code 6080, when the remaining visual field is 46 to 60 degrees bilaterally or unilaterally, a 10 percent disability rating is assigned, or each affected eye may be evaluated as 20/50. 38 C.F.R. § 4.79. When the remaining visual field is 31 to 45 degrees unilaterally or bilaterally, 10 percent and 30 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/70. Id. When the remaining visual field is 16 to 30 degrees unilaterally or bilaterally, 10 percent and 50 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/100. Id. When the remaining visual field is 6 to 16 degrees unilaterally or bilaterally, 20 percent and 70 percent disability ratings are assigned respectively, or each affected eye may be evaluated as 20/200. Id. When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the visual acuity and visual field defect are separately evaluated and combined under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.77(c). Based on a review of the relevant evidence, the Board finds that a disability rating in excess of 50 percent for bilateral visual impairment post facial trauma with left ptosis, left hypertropia, left quadranopsia, and right temporal field defect is not warranted. As the amended regulations went into effect during the rating period on appeal, both the former and revised criteria under Diagnostic Code 6080 are for consideration. Specifically, the medical evidence of record, to include the February 2004, August 2009, November 2013, and April 2021 VA examinations and post-service VA and private treatment records, reflects corrected distance measuring no more than 20/40 in the right eye and 20/70 in the left eye. When applying visual acuity of 20/40 for the right eye and 20/70 for the left eye, under Diagnostic Code 6066, a 10 percent disability rating is warranted for visual acuity. Additionally, the August 2009, November 2013, and April 2021 VA examiners indicated the presence of bilateral visual field defects, specifically, contraction of visual fields. For the August 2009 VA examination, perimetry as to the Veteran's right and left eyes showed the remaining visual fields were, in degrees: Meridian Normal degrees Right Eye Left Eye Temporally 85 30 62 Down temporally 85 57 70 Down 65 52 50 Down nasally 50 49 50 Nasally 60 56 55 Up nasally 55 40 52 Up 45 30 35 Up temporally 55 47 40 Total 500 361 414 Adding the remaining visual field for the Veteran's right eye at each principal meridian results in a total remaining visual field of 361 degrees. Dividing 361 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 45 degrees of the visual field for the right eye. Adding the remaining visual field for the Veteran's left eye at each principal meridian results in a total remaining visual field of 414 degrees. Dividing 414 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 52 degrees of the visual field for the left eye. For the November 2013 VA examination, perimetry as to the Veteran's right and left eyes showed the remaining visual fields were, in degrees: Meridian Normal degrees Right Eye Left Eye Temporally 85 0 60 Down temporally 85 30 70 Down 65 47 50 Down nasally 50 50 50 Nasally 60 52 40 Up nasally 55 47 10 Up 45 34 8 Up temporally 55 15 0 Total 500 275 288 Adding the remaining visual field for the Veteran's right eye at each principal meridian results in a total remaining visual field of 275 degrees. Dividing 275 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 34 degrees of the visual field for the right eye. Adding the remaining visual field for the Veteran's left eye at each principal meridian results in a total remaining visual field of 288 degrees. Dividing 288 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 36 degrees of the visual field for the left eye. For the April 2021 VA examination, perimetry as to the Veteran's right and left eyes showed the remaining visual fields were, in degrees: Meridian Normal degrees Right Eye Left Eye Temporally 85 2 50 Down temporally 85 20 58 Down 65 42 45 Down nasally 50 50 50 Nasally 60 55 40 Up nasally 55 50 55 Up 45 20 0 Up temporally 55 5 0 Total 500 244 298 Adding the remaining visual field for the Veteran's right eye at each principal meridian results in a total remaining visual field of 244 degrees. Dividing 244 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 31 degrees of the visual field for the right eye. Adding the remaining visual field for the Veteran's left eye at each principal meridian results in a total remaining visual field of 298 degrees. Dividing 298 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 37 degrees of the visual field for the left eye. The Veteran's visual field defect may be evaluated based on either remaining visual field degrees or based on visual acuity assigned for remaining visual field degrees, whichever results in the higher rating. As the Veteran's remaining visual field during the period on appeal was, at worst, between 31 to 45 degrees in his right eye and between 31 to 45 degrees in his left eye, a 30 percent rating is warranted for bilateral visual field defect with remaining visual field for both eyes between 31 to 45 degrees. However, remaining visual field criteria also instructs to evaluate the Veteran's right eye and left eye each as 20/70, as his average remaining visual field is between 31 to 45 degrees in the right eye and between 31 to 45 degrees in the left eye (when remaining visual field is 31 to 45 degrees, each affected eye is evaluated as 20/70). When applying visual acuity of 20/70 for the right eye and 20/70 for the left eye to determine visual field defect, a 30 percent rating would be warranted. Thus, taking the higher of the two evaluations (30 percent based on a bilateral rating for remaining visual field between 31 to 45 degrees for the right eye and left eye, or 30 percent based on applying visual acuity of 20/70 for the right eye and 20/70 for the left eye), here, both instances result in a 30 percent evaluation for bilateral visual field defect under Diagnostic Code 6080. To the determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present, VA separately evaluates the visual acuity and visual field defect (expressed as a level of visual acuity) and combines them under the provisions of 38 C.F.R. § 4.25. Thus, when combining the Veteran's corresponding visual acuity impairment throughout the period on appeal of 10 percent with his 30 percent rating for bilateral visual field defect, a 40 percent rating is achieved. The Board notes that, while the medical evidence of record demonstrates improvement in the Veteran's bilateral visual fields during the 2009, 2013, and 2021 VA examinations, the Board will not disturb the 50 percent disability rating currently assigned based upon the visual acuity and visual field defects found during the June 2000 VA examination, which predates the period on appeal. Therefore, the currently assigned 50 percent disability rating is appropriate, and the Veteran is not entitled to a higher rating. The Board acknowledges the Veteran's contention that his bilateral eye disability requires referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2019). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular rating is adequate, and referral is not required. Id.; 38 C.F.R. § 3.321(b)(1). The Board finds that the schedular evaluation of the Veteran's bilateral eye disability is adequate. Here, the Veteran's bilateral visual impairment post facial trauma with left ptosis, left hypertropia, left quadranopsia, and right temporal field defect is currently rated as 50 percent disabling. While the Board acknowledges the Veteran's report that his bilateral eye disability produces severe visual impairment that makes it difficult to perform daily activities, Diagnostic Code 6080 contemplates the Veteran's bilateral eye symptoms as to visual acuity and visual field defects, as it addresses the Veteran's bilateral visual field defect, as well as his bilateral corrected distance, and, when combined, actually achieves only a 40 percent disability rating based on 20/40 corrected distance vision in the right eye and 20/70 corrected distance vision in the left eye, as well as bilateral visual field defect between 31 and 45 degrees. Here, the 2009, 2013, and 2021 VA examinations show improvement in the Veteran's bilateral visual field defect from his 2000 VA examination, which his current 50 percent disability rating is based on. Moreover, the 2021 VA examiner found no current evidence of diplopia, and that the Veteran's vision is not impaired to the point that he is limited to no more than light perception only in either eye. Further, the Veteran's post-service treatment records are silent for evidence of any incapacitating episodes that required treatment for his bilateral eye disability within a twelve-month period. The Board has stated that it will not disturb the 50 percent disability rating currently assigned for the Veteran's bilateral eye disability despite a showing of bilateral visual field improvement between the 2000 VA examination to the 2021 VA examination. Therefore, the Board finds that the rating schedule is adequate to evaluate the Veteran's bilateral eye disability, and referral for extraschedular consideration is not in order. In sum, as the Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 50 percent for bilateral visual impairment post facial trauma with left ptosis, left hypertropia, left quadranopsia, and right temporal field defect, the claim must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KELLI A. KORDICH 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.