Citation Nr: 22017296 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 10-18 896 DATE: March 24, 2022 ORDER An initial compensable disability rating for residuals of exotropia, status post bilateral lateral rectus resection, is denied. A separate 10 percent disability rating for diplopia with eye pain, as residuals of service-connected residuals of exotropia, status post bilateral lateral resection, is granted; subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a compensable disability rating for headaches, as a residual of service-connected residuals of exotropia, status post bilateral lateral rectus resection, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's residuals of exotropia manifest corrected distance visual acuity of no worse than 20/40 in the right eye and 20/40 in the left eye, without evidence of a visual field defect. 2. The Veteran's diplopia with eye pain has been medically linked to his service-connected residuals of exotropia. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for residuals of exotropia, status post bilateral lateral rectus resection, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code 6099-6079. 2. The criteria for a separate 10 percent disability rating for diplopia with eye pain, as residuals of the Veteran's service-connected residuals of exotropia, status post bilateral lateral rectus resection, are 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 6099-6036. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 2002 to February 2003 with an earlier period of active duty for training (ACDUTRA) from January 1994 to July 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran testified at a travel Board hearing before a Veterans Law Judge who is no longer employed by the Board. The Veteran was offered a replacement hearing before another Veterans Law Judge in April 2020, and the Veteran declined a new hearing. In an October 2016 decision, the Board denied the Veteran's claim of entitlement to an initial compensable disability rating for residuals of exotropia, status post bilateral lateral rectus resection. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court granted a Joint Motion for Remand (JMR), remanding the matter for action consistent with terms of the JMR. The Board remanded the matter again in January 2018 and May 2020 for further development. In January 2021, the Veteran requested another Board hearing. In August 2021, the Veteran testified at a virtual Board hearing before the undersigned. Higher Initial 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 caused by a given disability. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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, if different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Entitlement to an initial compensable disability rating for residuals of exotropia, status post bilateral lateral rectus resection, to include whether a separate compensable rating is warranted for associated diplopia with eye pain. The Veteran seeks a compensable initial disability rating for his residuals of exotropia, status post bilateral lateral rectus resection, which is currently rated as noncompensable (zero percent) under 38 C.F.R. § 4.79, Diagnostic Code 6099-6079, which is rated as analogous to a disease of the eye (Diagnostic Code 6099) under former criteria for impairment of central visual acuity (Diagnostic Code 6079). Prior to December 10, 2008, Diagnostic Code 6079 provided that when visual acuity in both eyes was 20/40, a noncompensable rating was warranted. When visual acuity in one eye was 20/50 and visual acuity in the other eye was 20/40, a 10 percent rating was warranted. Effective December 10, 2008, Diagnostic Code 6079 was removed from the regulations. Diagnostic Code 6066 now provides ratings where vision in one eye (the poorer eye) is 10/200 or better. 38 C.F.R. § 4.79. 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. 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 noncompensable (zero percent) rating is warranted when visual acuity in both eyes is 20/40. A 10 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/50, and vision in the other eye is 20/40; when visual acuity in one eye (the poorer eye) is 20/70, and vision in other eye is 20/40; or when visual acuity in one eye (the poorer eye) is 20/100, and vision in the other eye is 20/40. 38 C.F.R. § 4.79. Based on a review of the relevant evidence, an initial compensable disability rating for residuals of exotropia, status post bilateral lateral rectus resection, is not warranted. The April 2006, October 2009, April 2010, May 2013, and October 2020 VA examinations reflect corrected distance visual acuity measuring no worse than 20/40 in the right eye and 20/40 in the left eye, without evidence of a visual field defect. While the May 2019 VA examination shows corrected distance visual acuity of 5/200 or worse in both the right and left eyes, this examination is inadequate, as the Veteran was intoxicated during the examination and was uncooperative with reading the eye charts, contributing to unreliable results. Further, post-service treatment records are silent for evidence of corrected distance visual acuity of at least 20/50 in one eye or any visual field defects. Here, the Veteran's residuals of exotropia are manifested by corrected distance vision of 20/40 in the right eye and 20/40 in the left eye, which warrants a noncompensable (zero percent) rating under Diagnostic Code 6066. Therefore, the currently assigned noncompensable rating for residuals of exotropia is appropriate and a higher rating is not warranted. With regard to whether a separate rating is warranted under another diagnostic code, the October 2020 VA examiner also diagnosed the Veteran with diplopia, indicating that it is intermittent in nature. The examiner opined that the Veteran's diplopia is a residual of his residuals of exotropia, status post bilateral lateral rectus resection. Throughout the period on appeal, the Veteran has also reported ongoing symptoms of eye pain. The October 2020 VA examiner also opined that the Veteran's eye pain is a common symptom of the Veteran's intermittent diplopia. Therefore, the assignment of a separate disability rating for diplopia with associated eye pain is warranted. Under 38 C.F.R. § 4.79, diplopia is rated pursuant to Diagnostic Code 6090. The note under Diagnostic Code 6090 states: In accordance with 38 C.F.R. § 4.31, diplopia that is occasional or that is correctable with spectacles is evaluated as noncompensable (zero percent). Here, the 2020 VA examiner indicated that the Veteran's diplopia is intermittent/occasional in nature, and the Veteran has also testified at his 2021 Board hearing that his diplopia/double vision is occasional. However, to account for the Veteran's associated eye pain, it is appropriate to rate this symptom by analogy to Diagnostic Code 6036 (status post corneal transplant), which assigns a minimum 10 percent rating for symptoms including eye pain. Therefore, the Veteran's diplopia with associated eye pain warrants a separate 10 percent rating under Diagnostic Code 6099-6036. A higher rating is not available unless the evidence demonstrates that the Veteran's diplopia is constant, which it does not in this case. The Board acknowledges the Veteran's contention that a separate rating is warranted for any residual post-surgical scarring of the eyes. Here, the 2006, 2009, 2010, 2013, 2019, and 2020 VA examinations, as well as post-service treatment records, are silent for any evidence of scarring attributable to an eye disorder. Therefore, a separate rating is not warranted for any scarring related to the Veteran's residuals of exotropia and diplopia with eye pain. The Veteran also contends that his reported symptom of loss of depth perception warrants a separate rating, or that his service-connected residuals of exotropia and his service-connected diplopia with eye pain warrant an extraschedular evaluation. If the Veteran's schedular evaluations for exotropia and diplopia are inadequate, referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service is required for consideration of an extraschedular evaluation to commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1). 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. 38 C.F.R. § 3.321(b)(1). Here, the schedular evaluations of the Veteran's service-connected exotropia and service-connected diplopia with associated eye pain are adequate because the rating criteria reasonably describe the Veteran's disability levels and symptomatology, to include for changes in depth perception. Moreover, evaluation of visual impairment, specifically visual acuity and diplopia, contemplates using corrective glasses. Thus, the Veteran's exotropia and diplopia with associated eye pain are contemplated by the rating schedule, and the assigned schedular evaluations are adequate. Thun at 115. Therefore, referral for extraschedular consideration is not warranted and a separate rating for loss of depth perception is not warranted, as the rating criteria for service-connected exotropia and diplopia already contemplate depth perception symptoms through the use of visual impairment testing for visual acuity, visual field defect, and diplopia. 38 C.F.R. § 3.321(b)(1) In conclusion, an initial compensable disability rating for residuals of exotropia, status post bilateral lateral rectus resection, is denied, and a separate 10 percent disability rating for diplopia with eye pain, as residuals of service-connected residuals of exotropia, status post bilateral lateral resection, is granted. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for headaches, as a residual of service-connected residuals of exotropia, status post bilateral lateral rectus resection. During his October 2020 VA eye examination, the examiner opined that the Veteran's headaches are residuals of his service-connected exotropia. Therefore, a separate rating is warranted for headaches. However, the current record does not provide adequate evidence to rate the severity of the Veteran's headaches at this juncture. While the Veteran is competent to report the frequency and duration of his headaches, the credibility of his statements in this regard are questionable. For example, the Veteran has been found to be a poor historian, as evidenced by his inability to cooperate during the May 2019 VA examination. As such, a remand is necessary to afford the Veteran a VA examination to address the nature and severity of his headaches throughout the period on appeal, now that they have been found to be residuals of his service-connected residuals of exotropia. 2. Entitlement to a TDIU. The Veteran's claim for a TDIU is inextricably intertwined with the foregoing issue, and so disposition of the issue is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. 2. Thereafter, schedule the Veteran for a VA headaches examination to determine the nature and severity of his service-connected headaches throughout the entire period on appeal. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions expressed should be provided. 3. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claims, to include the intertwined issue of entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. (Continued on the next page) L. B. CRYAN 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.