Citation Nr: 1421966 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 09-01 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for postoperative retinal separation of the left eye with diplopia (left eye disability), to include consideration of an extraschedular rating. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from January 1986 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the Veteran's claims file was subsequently transferred to the VA RO in Wichita, Kansas. The Veteran testified at a hearing in June 2010 before the undersigned. A copy of the transcript has been associated with the claims file. After the hearing, he submitted additional evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2013). In September 2010 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that his left eye disability causes headaches, piercing left eye pain, fatigue, and severe eye strain. These symptoms are not adequately described by the applicable rating criteria. Further, the Veteran works as a website monitor, and the November 2010 VA examiner noted that his left eye disability has a "significant" impact on his occupational functioning because of fatigue and eye strain. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). An examination is required to determine whether these symptoms are due to his diplopia and, if so, then his case must be referred to the Director of the Compensation Service for consideration of an extraschedular rating for his left eye disability. 38 C.F.R. § 3.321(b)(1) (2013). TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board finds that a claim of entitlement to a TDIU has been raised. At his June 2010 hearing, the Veteran credibly testified that his left eye disability causes him to wear an eye patch at work, which does not relieve his symptoms. At his November 2010 VA examination, the Veteran reported that he only worked part time. His job as a website monitor requires him to look at a computer screen for several hours a day and it was noted that his left eye disability has a "significant" impact on his ability to function at work. It is not clear from the record whether the Veteran's part time job is substantially gainful employment or only marginal employment. Further development is required on remand, to include obtaining a VA opinion. The issue of whether the Veteran is entitled to a higher schedular rating for his left eye disability is inextricably intertwined with the issue of entitlement to an extraschedular rating, as the examination provided addressing the eye could support a higher disability rating. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter, pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which advises him the criteria needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information. 2. After eliciting any additional necessary authorization, obtain and associate with the claims file all outstanding evidence identified by the Veteran, or otherwise apparent from the record, in support of his claims. 3. Schedule the Veteran for an eye examination with an appropriate clinician for his left eye. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b) The examiner must provide opinions as to the following: i) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's reported headaches, eye pain, fatigue, and/or severe eye strain are caused by his service-connected left eye disability. ii) Whether the Veteran's service-connected left eye disability alone precludes him from securing and following substantially gainful employment consistent with his education and occupational experience. The examiner may not consider impairment caused by age or nonservice-connected disabilities. c) The examiner must provide measurements of the Veteran's visual acuity in both his service-connected left eye and his nonservice-connected right eye based upon his best distant vision obtainable after correction by eyeglasses. d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. If and only if the VA examiner finds that the Veteran's headaches, eye pain, fatigue, and/or severe eye strain are caused by his service-connected left eye disability, refer the Veteran's claim for an increased rating of his left eye disability to the Director of the Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013). 5. If and only if the VA examiner finds that the Veteran is unemployable solely due to his service-connected disabilities, refer the Veteran's TDIU claim to the Director of the Compensation Service, for extraschedular consideration for any time during the appeal period where his disability ratings do not meet the threshold criteria set forth in 38 C.F.R. § 4.16(a) (2013) that must be met before a schedular TDIU may be considered. 6. After the above has been completed, the RO must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 7. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2013). _________________________________________________ SARAH B. RICHMOND Acting 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).