Citation Nr: 1332649 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-33 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating for left eye traumatic aphakia with blindness, currently rated as 30 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from March 1960 through April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A timely Notice of Disagreement (NOD) was received in August 2011. After a Statement of the Case (SOC) was provided in November 2011, the Veteran perfected his appeal in December 2011, via VA Form 9 substantive appeal. The Board is of the opinion that the evidence raises the issue of entitlement to a TDIU. 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. The Court held further that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Accordingly, the issue of entitlement to a TDIU is on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In his August 2011 NOD and November 2011 TDIU application, the Veteran asserted that blindness in his left eye caused him to be unable to secure or follow a substantially gainful occupation. In that regard, he stated that he had not worked since January 1, 2001, when he was employed as a mechanic. According to the Veteran, his left eye disability limited his ability to drive and rendered him unable to read tool markings. A VA examination performed in April 2011 determined that the Veteran's left eye was capable of light perception only while visual acuity in his right eye at distance was 20/25 corrected. The examiner noted that the Veteran was retired since 2001 due to eligibility and years of service, but contrary to the Veteran's statements, noted the Veteran's occupation as being a security guard. Apparently based upon the mistaken understanding that the Veteran ordinarily worked the duties of a security guard, the examiner concluded that the Veteran's left eye disability did not affect his usual occupation. A private examination was performed in November 2011 by Dr. A.P. This examination confirmed that the Veteran was blind in his left eye with diminished visual acuity in his right eye. However, no opinion was given as to whether the Veteran's left eye disability impaired his ability to perform his occupational duties, or rendered him unable to secure or follow a substantially gainful occupation. Under VA laws and regulations, a TDIU may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be assigned even where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). Such cases are referred to the Director of the Compensation and Pension Service for extra-schedular consideration. Also, under 38 C.F.R. § 3.321(b)(1), VA may consider assigning a higher disability rating on an extra-schedular basis in cases where the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and, no extra-schedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). On the other hand, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case is insufficient to permit the Board to form a conclusion as to whether the Veteran's left eye disability affected his occupational functioning, rendered him unable to secure or follow a substantially gainful occupation, and/or whether the Veteran's left eye disability presents an exceptional disability picture in view of any occupational impairment. Accordingly, the Veteran should be arranged to undergo a new VA examination of his left eye to assess the current severity of his left eye disability, to include any resulting impairment of his normal occupation as a mechanic and/or his ability to secure and follow a substantially gainful occupation. Prior to requesting the examination ordered above, and in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should be asked to identify any private or VA treatment providers who have rendered treatment for his eyes since November 2011. VA must then make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim of entitlement to an increased disability rating for left eye traumatic aphakia with blindness, currently rated as 30 percent disabling, and entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. 2. The Veteran must also informed that VA is undertaking efforts to schedule a new VA examination of his left eye. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examination and to cooperate with the development of his claim; failure to report to any scheduled examination without good cause may result in denial of his claim. 3. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for University of Chicago Hospital and for any private and/or VA treatment providers who have provided treatment for his eyes since November 2011. Thereafter, the RO or AMC should make efforts to obtain the records for any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 4. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination with a licensed optometrist or licensed ophthalmologist, to determine all manifestations and residuals of the Veteran's service-connected left eye traumatic aphakia with blindness. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All appropriate tests and studies should be performed in a manner that is in accordance with the applicable regulations. Upon review of the record and examination of the Veteran, the examiner should: (a) identify the disease, injury, or pathologic process responsible for any found impairment of the left eye; (b) describe in detail any impairment of visual acuity in both eyes (to include central uncorrected and corrected visual acuity for distance and near vision using Snellen's test type or its equivalent), loss of visual field (as shown during Goldmann kinetic perimetry or automated perimetry using Humphrey Model 750, Octopus Model 101, or later versions of these perimetric devices with simulated kinetic Goldmann testing capability), and/or impairment of muscle function (as shown according to Goldmann perimeter chart identifying the four major quadrants). All findings from such testing should be reported, also in accordance with the provisions under 38 C.F.R. §§ 4.75 through 4.78; (c) describe any functional loss pertaining to the eye disability, as well as the frequency and duration of any incapacitating episodes (i.e., acute symptoms related to the Veteran's eye disability that have required bed rest prescribed by a physician and treatment by a physician); (d) describe any impairment in the Veteran's occupational functioning attributable to his eye disability, to include an opinion as to whether the Veteran's left eye disability renders him unable to secure or follow a substantially gainful occupation. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. After completion of the above development, the issue of the Veteran's entitlement to an increased disability rating, to include a TDIU, for left eye traumatic aphakia with blindness, currently rated as 30 percent disabling, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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). _________________________________________________ DAVID L. WIGHT 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) (2013).