Citation Nr: 1303605 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 04-31 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent for a left eye macular microhole with associated operculum. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from February 1983 to February 2003. The appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board previously remanded the claim in November 2007 and again in May 2010. The case now returns to the Board for further review. The issues of entitlement to service connection for right eye disability and entitlement to service connection for headaches, both as secondary to the Veteran's service-connected left eye macular microhole with associated operculum, were referred to the RO for appropriate action in the Introduction to the Board's May 2010 Decision and Remand, but it does not appear that the RO has yet acted on those issues, the case having been forwarded to the Appeals Management Center (AMC) upon that remand, and the AMC having not taken or initiated such action. The issues are accordingly again referred for appropriate action to the Agency of Original Jurisdiction (AOJ). The Board still does not have jurisdiction over them. 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 The Board in its May 2010 Remand recognized the need in this case to consider extraschedular bases of rating the Veteran's claimed left eye macular microhole with associated operculum, in light of the Veteran's numerous assertions of increased disability not reflected by ordinary ophthalmologic findings. 38 C.F.R. § 3.321(b)(1) (2012). Thun v. Peake, 22 Vet. App. 111 (2008), provides a 3-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for a service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether his disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture, and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, his disability picture requires the assignment of an extraschedular rating. The Board in May 2010 noted that an opinion by the Compensation and Pension Director considered the Veteran's ability to perform work as a Postal worker, but that the Veteran reported subsequently performing work inspecting trucks, and that he reportedly had to cease that inspection work due to vision difficulties associated with his left eye macular microhole with associated operculum. The Board accordingly requested an addendum opinion regarding entitlement to an extraschedular evaluation. Subsequently, in August 2011 the Veteran was afforded an additional VA examination for compensation purposes by an optometrist, and the optometrist provided an addendum opinion. The case was then referred the Ratings Operations Manager of the AMC, who in turn provided a statement of certain summary facts for the Director, Compensation and Pension Service. The Director, Compensation Service, then provided a May 2012 decision letter denying entitlement to an extraschedular rating on the basis of the facts presented. In an April 2010 statement, the Veteran made several allegations regarding impacts of his visual impairment on his ability to work and function on a daily basis which have not been addressed by a VA examiner for compensation purposes, and should be addressed to afford adequate due process of his claim, so that the Board does not prejudice the veteran in its opinion. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Such allegations were also not addressed by the Ratings Operations Manager of the AMC in his statement of summary facts addressed to the Director, Compensation and Pension Service; and were not addressed by the Director, Compensation Service, in the Director's denial of an extraschedular rating. If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2 (2012). Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). In this case, because the VA optometrist who conducted the August 2011 examination for compensation purposes did not address the disability concerns voiced by the Veteran, and because the Veteran is competent to address his symptoms of disability as he experiences them, the examination report ultimately fails to adequately address the claimed disability for purposes of the Board's adjudication. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); Stefl. In his April 2010 statement, the Veteran complains of loss of depth perception, being only able to see out of one eye at a time, having to cover one eye to be able to see clearly with the other, and inability to use his left eye for many activities including reading, writing, watching television, and driving. The findings upon the Veteran's August 2011 VA examination for compensation purposes suggest the possibility that the Veteran's assertions are without objective foundation. However, the examiner did not actually address the assertions, and hence an examination is in order to adequate address them. The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for arriving at medically-based conclusions. Evans v. West, 12 Vet. App. 22, 30 (1998); Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Accordingly, the case must be additionally informed by an examination by an ophthalmologist, who must be asked to address assertions made by the Veteran in his April 2010 submission. While the Board in its May 2010 Remand requested that the Director of Compensation and Pension provide an addendum opinion "regarding entitlement to an extraschedular evaluation," this was instead directed to the August 2011 examining optometrist, who then checked a box indicating that the Veteran did not have incapacitating episodes requiring bed rest prescribed by a doctor, and who then provided an addendum opinion in December 2011 that the Veteran was not incapable of securing or following a substantially gainful occupation due to his left eye macular microhole and associated operculum. Thus, the August 2011 examiner did not provide the requested opinion addressing extraschedular consideration, instead providing an opinion addressing entitlement to a total disability rating based on unemployability pursuant to 38 C.F.R. § 4.16. The extraschedular question under 38 C.F.R. § 3.321(b)(1) is distinctly different from that of unemployability under 38 C.F.R. § 4.16. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996) (extraschedular rating as a component of an increased rating claim). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran additional opportunity to submit evidence or argument in furtherance of the remanded claim. 2. With the Veteran's assistance, as appropriate, obtain all VA or private treatment records pertaining to his claimed disability. 3. Because the Board believes that an examination by a specialist should be afforded in this case, the veteran should be afforded an appropriate in-person VA examination by a qualified ophthalmologist, to determine the nature and severity of his present service-connected left eye macular microhole with associated operculum. The claims file must be made available to the examiner for review before the examination. In addressing the questions below, the examiner's opinions must be informed by a review of the Veteran's medical history and findings as documented upon prior examinations and treatments. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of severity. Lay statements should be considered, with due consideration of their credibility or lack of credibility based on other evidence of record or other evidence presented. Any indicated tests or studies should be conducted. The examiners should do the following: a. The examiner is advised that a new examination is required because the prior examiner in August 2011 did not address the Veteran's assertions of disability, and did not address the presence of any special characteristics of disability not encompassed by regular schedular standards. b. Review the claims file including any pertinent records of examination and treatment, lay statements, and other documents as may reflect the current nature and severity of the Veteran's left eye macular microhole with associated operculum. In particular, review findings of the August 2011 examining optometrist, and also review the Veteran's submitted April 2010 statement of alleged impairments associated with his left eye macular microhole with associated operculum. c. The examiner must explicitly address impairments asserted by the Veteran in his April 2010 statement as due to his left eye macular microhole with associated operculum, including the following: loss of depth perception, being only able to see out of one eye at a time, having to cover one eye to be able to see clearly with the other, and inability to use his left eye for many activities including reading, writing, watching television, and driving. The examiner should address whether these assertions are supported by the clinical evidence and address the extent of any such additional associated impairments which are supported by the clinical evidence. To the extent that the examiner believes that symptoms reported by the Veteran are not consistent with the medical findings or with the nature of the eye disability, the examiner should note such inconsistencies in the examination report. d. The examiner should also explicitly consider pertinent past records in the examination report. e. The examiner should assess the level of functional impairment due to the left eye macular microhole with associated operculum, including particularly impacts on work and work-like functioning. f. A rationale must be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 4. Thereafter, the RO/AMC should again consider referral of the claim for extraschedular consideration. 5. Thereafter, readjudicate the remanded claim de novo. The raised issues of TDIU under 38 C.F.R. § 4.16, as well as entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) should each be considered. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ 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) (2012).