Citation Nr: 1135303 Decision Date: 09/21/11 Archive Date: 10/03/11 DOCKET NO. 08-01 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE 1. Entitlement to an increased disability rating for service-connected small angle esotropia, currently rated as 30 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to May 1996. These matters (with the exception of the claim seeking TDIU) come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The December 2006 rating decision continued a previously assigned 30 percent disability rating for the Veteran's service-connected small angle esotropia. Service connection was originally granted for small angle esotropia by the RO in September 1996; a 30 percent rating was assigned, effective June 1, 1996. The Veteran did not appeal this decision. She later submitted a claim for an increased rating which was received by VA in August 2006. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, as presented as part of a May 2011 Appellant's Brief submitted on behalf of the Veteran by her representative, it was argued that the Veteran's service-connected vision disability caused her to lose her employment. See page three of Appellant's Brief. Therefore, the issue is raised by the record. As such, the issue is properly before the Board. The Board parenthetically observes that a claim for TDIU was previously denied by the RO in July 2008, and the Veteran did not appeal the decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Concerning the Veteran's claim seeking entitlement to an increased disability rating for her service-connected small angle esotropia, the Board observes that the Veteran was most recently afforded a VA eye examination in November 2008. This examination is dated almost three years ago. In some instances, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). In the course of the November 2008 VA eye examination, the Veteran gave a history of worsening symptoms since her last examination [in November 2006]. She reported suffering from constant double vision, and added that the prisms in her glasses which were supposed to correct her diplopia did not work well. She also reported falling as a result of misjudging stair and curb heights. She also mentioned that she had not worked for three years since being fired due to her inability to perform her job as a result of her double vision. Examination revealed bilateral corrected far and near vision to 20/20. Diplopia was present, described as present at all distances and intermittent and correctable by the use of prisms. The examiner did add that while the double vision was correctable with prism, the Veteran adapted to the prism and accommodated, causing the amount of correction to change. Visual acuity was not worse than 5/200. Accommodative esotropia was diagnosed. In light of the factors noted above, the Board concludes that, in this case, an additional VA examination is needed to render a decision on the claim. 38 C.F.R. § 3.159(c)(4). Based on the above-discussed VA eye-related medical findings noted, as well as in contemplation of the age of the most recent VA eye examination of record, an eye examination is here needed to address the nature and severity of the Veteran's eye disorder symptoms. Based on this, a contemporaneous examination should be afforded the Veteran, to address the "current" degree of disability associated with the service-connected small angle esotropia. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board points out that the criteria used to evaluate eye-related disabilities were amended effective December 10, 2008, but the amended criteria govern cases only when a claim is filed on or after the effective date of the amended regulation. See 73 Fed. Reg. 66543 (November 10, 2008). Here, the claim for an increased rating was received in August 2006, thus the rating criteria effective December 20, 2008 - contrary to what the Veteran was informed as part of an April 2009 supplemental statement of the case (SSOC) -- are not applicable in the instant case. The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hence, in readjudicating this increased rating claim the RO/AMC must consider the Hart decision. Concerning the claim for entitlement to TDIU raised within the context of the appeal for an increased rating for service-connected small angle esotropia (see May 2011 Appellant's Brief; see also Rice), the Board notes first that the Veteran should be sent the appropriate application form for this claim. Rice. Second, the Board notes that, to be granted, a TDIU rating must be supported by medical evidence that a claimant's service-connected disability or disabilities have rendered a veteran unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a) (2010). Given the assertions made by the Veteran's representative as part of his May 2011 Appellant's Brief - where it was noted "the evidence of record also establishes [the Veteran] lost her employment due to the severity of the diplopia" -- on remand, a VA examiner should address the extent of functional and industrial impairment due to the Veteran's service-connected small angle esotropia. See Gary v. Brown, 7 Vet. App. 229 (1994); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); Beaty v. Brown, 6 Vet. App. 532 (1994); Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The Veteran is also shown to be service-connected for chronic neck strain, evaluated as 30 percent disabling. While the VA examiner who conducted the November 2008 VA eye examination commented that, if the Veteran wore a patch over one eye "she would not have double vision any more [sic] and it would allow her to see only one image and allow her to do computer work, her chores, and she could drive legally," she added that patching one eye would limit the Veteran from doing some activities such as playing sports. Also, there is no examination report in the claims file that addresses both the extent of functional and industrial impairment and the ability of the Veteran to obtain or maintain substantially gainful employment concerning her service-connected chronic neck strain. Such an opinion therefore must be obtained. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim, and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Also, while the record does not indicate that the Veteran has either applied for, or is in receipt of, Social Security Administration (SSA) disability benefits, as this case is being remanded anyway, the Veteran should be contacted to clarify such. If so, all pertinent records (including both medical records and decisions) should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send a revised notice letter regarding the Veteran's claim for an increased disability rating for small angle esotropia. In particular, the notice letter should describe the applicable diagnostic criteria necessary to establish a higher disability rating for small angle esotropia. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 2. The RO/AMC should send the Veteran a letter notifying her in conjunction with 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159 of the regulations of the information and evidence that is needed in order to substantiate a claim for TDIU. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b). This notice required must (1) inform her about the information and evidence not of record that is necessary to substantiate the claim; (2) inform her about the information and evidence that VA will seek to provide; and (3) inform her about the information and evidence she is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1). 3. If any further development of the evidence is needed based on any submissions of information or evidence by the Veteran in response to the notification letters sent in accordance with #1 and #2 above, the RO/AMC should further develop the evidence in this regard. 4. The RO/AMC should contact the Veteran to confirm whether or not she has applied for SSA disability benefits. In the event that the Veteran responds in the affirmative, the RO/AMC should contact SSA and request all documents pertaining to any award of disability benefits from the SSA, and specifically request a copy of the decision awarding any benefits and copies of the medical records upon which the SSA based its decision. 5. The RO/AMC should schedule the Veteran for a VA eye examination by a physician. The claims folder and a copy of this REMAND are to be made available for the examiner to review. In accordance with the latest AMIE worksheets for rating eye disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of her service-connected small angle esotropia. A complete rationale for any opinions expressed must be provided. Although it is the responsibility of the VA rating specialist to determine, based on all the evidence of record -- including reports of examination, outpatient treatment records, lay statements, letters from employers, and evidence pertaining to the Veteran's educational background and employment history - whether the veteran is unable to obtain or retain substantially gainful employment in light of her service-connected disabilities alone, the VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. It is the examiner's responsibility to furnish a full description of the effects of the service-connected disability upon the Veteran's ordinary activity which include employment. See 38 C.F.R. § 4.10. This description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson, 21 Vet. App. 211, 219 (2007), rev'd on other grounds sub nom. Moore v Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although the examiner is not required to offer an opinion on the general employability of the Veteran, the examiner should, in this case, offer such an opinion as to whether it is at least as likely as not that the Veteran's service-connected small angle esotropia alone precludes her ability to obtain or maintain substantially gainful employment. The examination report must include a complete rationale for all opinions and conclusions expressed. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 6. The RO/AMC should schedule the Veteran for a VA orthopedic examination by a physician. The claims folder and a copy of this REMAND are to be made available for the examiner to review. In accordance with the latest AMIE worksheets for rating musculoskeletal disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of her service-connected chronic neck strain. A complete rationale for any opinions expressed must be provided. Although it is the responsibility of the VA rating specialist to determine, based on all the evidence of record -- including reports of examination, outpatient treatment records, lay statements, letters from employers, and evidence pertaining to the Veteran's educational background and employment history -- whether the veteran is unable to obtain or retain substantially gainful employment in light of her service-connected disabilities alone, the VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. It is the examiner's responsibility to furnish a full description of the effects of the service-connected disability upon the Veteran's ordinary activity which include employment. See 38 C.F.R. § 4.10. This description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson, 21 Vet. App. 211, 219 (2007), rev'd on other grounds sub nom. Moore v Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although the examiner is not required to offer an opinion on the general employability of the Veteran, the examiner should, in this case, offer such an opinion as to whether it is at least as likely as not that the Veteran's service-connected chronic neck strain alone precludes her ability to obtain or maintain substantially gainful employment. The examination report must include a complete rationale for all opinions and conclusions expressed. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 7. The Veteran is hereby notified that it is her responsibility to report for any scheduled VA examination, to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any ordered examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 8. The RO/AMC should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action should be taken. See Stegall v. West, 11 Vet. App. 268 (1998). 9. If, while in remand status, additional evidence or information received triggers a need for further development or assistance, such as providing the Veteran with updated notice of what evidence has been received and not received by VA as well as who has the duty to request evidence, then such development must be undertaken by VA. 38 U.S.C.A. §§ 5100, 5103 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). 10. Thereafter, and following any other indicated development, the RO should readjudicate the appealed issue of entitlement to an increased disability rating for service-connected small angle esotropia currently rated as 30 percent disabling. The RO must consider whether different ratings may be warranted for different time periods in light of the decision in Hart. If the appeal is denied, the Veteran and her representative should be provided a SSOC in accordance with 38 U.S.C.A. § 7105 (West 2002) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. 11. After all development of the evidence is complete, the RO/AMC should adjudicate the claim for TDIU based on all the evidence of record that is relevant to the issue of TDIU. If the benefit sought is not granted, the appeal of the claim for TDIU should be returned to the Board for appellate review. The purpose of this REMAND is to ensure due process as well as to develop additional evidence. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until she is notified. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).