Citation Nr: 1753033 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 09-43 783 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 10 percent since July 31, 2007, for a head injury with headaches. 2. Entitlement to a rating in excess of 30 percent March 19, 2007, to April 4, 2007, and from August 1, 2007, to February 1, 2016; in excess of 70 percent from February 2, 2016, to February 7, 2017; and in excess of 90 percent since February 8, 2017, for post-operative bilateral detached retinas. 3. Entitlement to a rating in excess of 20 percent since July 31, 2007, for right shoulder separation. 4. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) from March 19, 2007, to February 1, 2016. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Air Force from November 1987 to March 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from January 2008, March 2009, July 2015, and August 2017 decisions of the St. Louis, Missouri, and Cleveland, Ohio, Regional Office (RO). In February 2016, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. In May 2016, the Board denied a rating in excess of 10 percent for a head injury with headaches and remanded the issues of an increased rating for the right shoulder disorder and for post-operative bilateral detached retinas and entitlement to a TDIU. The Veteran subsequently appealed the denial of a rating in excess of 10 percent for a head injury with headaches to the United States Court of Appeals for Veterans' Claims (Court). In March 2017, the Court granted the Parties' Joint Motion for Remand (JMR); vacated that part of the May 2016 Board decision denying an increased rating for a head injury with headaches; and remanded the Veteran's appeal to the Board. The issues of entitlement to special home adaptation and entitlement to automobile have been raised by the record in September and October applications, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of an increased rating for head injury with headaches and entitlement to special monthly compensation are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. During the period on appeal, the Veteran had floaters, retinal tears, retinal breaks, cataracts, blurred vision, low vision, decreased visual acuity, did not meet the minimum standard vision to obtain a driver's license, had tired eyes, uncomfortable eyes, headaches, sleepiness, lost concentration, trouble remembering what he had read, double vision, words moving on the page, a "pulling" feeling around the eyes, words blurring, would lose his place while reading, would re-read the same lines, saw flashes of light, had loss of peripheral vision, had loss of depth perception, bumped into objects causing bruising, did not seeing curbs or inclines or declines and would fall off of them, had difficulty reading, would trip, would walk into walls, had difficulty writing within the lines, had trouble identifying items while shopping and reading directions on food, was bothered by light, had trouble with glare when watching television, had visual acuity worse than 5/200, could not detect hand motion or count fingers at any distance, had no light perception in one eye, and was legally blind. 2. During the period on appeal, the Veteran's right shoulder disorder caused pain; swelling; stiffness; flare-ups; functional loss; below normal strength and grasp; decreased range of motion; limited his overhead movement and ability to lift heavy objects; impacted his ability to do chores, exercise, sports, recreational activities, brush his teeth, and dress himself; impingement; a suspected rotator cuff condition; dislocation of the AC joint; and resulted in forward flexion limited to 120 degrees, abduction limited to 90 degrees, and external and internal rotation limited to 50 degrees each. CONCLUSIONS OF LAW 1. The criteria for a rating of 100 percent since March 19, 2007, for post-operative bilateral detached retinas have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.76, 4.79, Diagnostic Code 6064 (2017). 2. The criteria for a rating in excess of 20 percent, since July 31, 2007, for right shoulder separation have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA has issued several notices to the Veteran including April 2007, August 2007, and April 2008 notices which informed him of the evidence generally needed to support his claims; what actions he needed to undertake; and how VA would assist him in developing his claims. The notices were issued to the Veteran prior to the rating decisions from which the instant appeal arises. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VA's duties to notify and to assist have been met. II. Increased Rating Analyses Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A. Post-operative Bilateral Detached Retinas When the Veteran has no more than light perception in one eye, vision is rated according to 38 C.F.R. § 4.79, Diagnostic Code 6064. If the other eye has vision of 20/40, a 30 percent rating is warranted. If the other eye has vision of 20/50, a 40 percent rating is warranted. If the other eye has vision of 20/70, a 50 percent rating is warranted. If the other eye has vision of 20/100, a 60 percent rating is warranted. If the other eye has vision of 20/200, a 70 percent rating is warranted. If the other eye has vision of 15/200, an 80 percent rating is warranted. If the other eye has vision of 10/200, a 90 percent rating is warranted. If the other eye has vision of 5/200, a 100 percent rating is warranted. 38 C.F.R. § 4.79, Diagnostic Code 6064 (2017). VA regulation states that central visual acuity should be evaluated on the basis of corrected distance vision with central fixation, even if a central scotoma is present. However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. 38 C.F.R. § 4.76 (2017). From April 5, 2007, to July 31, 2007, the Veteran had a temporary 100 percent rating due to a period of convalescence. Because the Veteran's rating runs behind the temporary 100 percent, however, all evidence since the date of the claim will be considered. In his March 2007 informal claim, the Veteran wrote that he had lost nearsighted and peripheral vision and that he could not see out of his right eye. Private treatment records indicate that the Veteran underwent eye operations in April 2007 for right eye retinal detachment and had secondary intraocular lens implantation due to aphakia. Treatment records from that time indicate that the Veteran had right eye vision of 4/200 on April 4, 2007, the day before his first surgery. In an April 2007 statement, the Veteran wrote that, after his surgery, he could only see light and color forms out of his right eye. He could not read, almost got into several motor vehicle accidents, had no depth perception, and could not see curves, stairs, or items being handed to him. At the end of April 2007, he had right eye vision of 2/200 and his private physician diagnosed him with recurrent right eye detachment. A May 2007 VA treatment record states that the Veteran had eye redness for the prior two months and had occasional eye throbbing. A July 2007 VA treatment record states that the Veteran had complaints of right eye flashes and left eye floaters that impaired his near and far vision. In his right eye, he could count fingers at 2 feet and had visual acuity of 20/25 in the left eye. He had a retinal detachment in the right eye, a break in the left eye, and several tears. Another July 2007 VA treatment record indicates that the Veteran had laser treatment for multiple left eye retinal breaks. A July 25, 2007, state Bureau of Motor Vehicles vision examination report states that the Veteran had corrected right eye vision of 20/300, corrected left eye vision of 20/40, and combined corrected vision of 20/40. He did not meet the standard for a driver's license. A December 2007 VA treatment record indicates that the Veteran could see hand motion out of the right eye and had left eye corrected visual acuity of 20/50-2. Another December 2007 VA treatment record states that the Veteran could see hand motion out of his right eye, that he had a dislocated intraocular lens implant, and that he had a retinal break with detachment. A February 2008 VA treatment record states that the Veteran's left eye was reactive to light and that he was blind in the right eye with no light reaction. In a July 2008 statement, the Veteran wrote that he had lost sight in one eye and, as a result, was no longer allowed to drive. In August 2008, the Veteran was afforded a VA examination. The examiner stated that the Veteran had only light perception in the right eye in January 2008, and no light perception in the right eye in March, May, and July 2008. The examiner stated that the Veteran had left eye visual acuity of 20/25 in July 2007, 20/40+ in January 2008, 20/40 + 2 in March 2008, and 20/40 in May and July 2008. On examination, he had no light perception in the right eye. In his left eye, he had uncorrected far vision of being able to count fingers at 3 feet, corrected far vision of 20/30 +2, uncorrected near vision of 20/100 -1, and corrected near vision of 20/30 -2. The examiner noted that the visual acuity was worse than 5/200 and that the Veteran could not detect hand motion or count fingers at any distance. An October 2008 VA treatment record states that the Veteran had no light perception in the right eye and left eye vision of 20/60 +2. A January 2009 VA treatment record indicates that the Veteran had symptoms of tired eyes, uncomfortable eyes, headaches, sleepiness, lost concentration, trouble remembering what he had read, double vision, words moving on the page, a "pulling" feeling around the eyes, words blurring, losing his place while reading, re-reading the same lines, seeing flashes of light, seeing floaters, and having loss of peripheral vision. In a June 2009 statement, the Veteran wrote that he had no vision in the right eye, had left eye floaters, had no depth perception, had lost his driver's license, bumped into objects causing bruising, did not seeing curbs, inclines or declines and would fall off of them, and had difficulty reading. He reported that he had been told his right eye should be removed. In a June 2009 statement, the Veteran's spouse wrote that the loss of his right eye caused by the Veteran to trip and walk into walls. A December 2009 VA treatment record states that the Veteran had no light perception in the right eye and corrected visual acuity in the left eye at far distance of 20/40 and at near distance of 20/30 at 40 centimeters. In December 2011, the Veteran was afforded a VA examination. He was diagnosed with retinal detachment with several repairs of the right eye, phthisis bulbi of the right eye, two retinal tears with repair of the left eye, and anterior cortical cataracts of the left eye. He had no vision in the right eye and blurred vision in the left eye. On examination, he had uncorrected distance vision in the left eye of 20/50, uncorrected near vision of 20/70, corrected distance vision of 20/40 or better, and corrected near vision of 20/40 or better. A September 2012 VA treatment record indicates that the Veteran had corrected visual acuity of no light perception in the right eye and 20/30 -2 in the left eye. A December 2012 VA treatment record indicates that the Veteran had corrected distance visual acuity of no light perception in the right eye and 20/40 in the left eye. A January 2014 VA treatment record states that the Veteran had total visual impairment in the right eye and near normal vision in the left eye. A February 2014 VA treatment record states that the Veteran was blind in one eye and had low vision in the other eye. A March 2014 VA treatment record states that the Veteran was blind in the right eye and had decreased visual acuity in the left eye. A February 2016 VA treatment record states that the Veteran had blindness/low vision noted on his VA problem list as early as September 2012. Another February 2016 VA treatment record indicates that the Veteran reported "murky" vision in his left eye and his corrected vision was 20/125. He continued to have no light perception in the right eye. In a February 2016 statement, the Veteran's VA optometrist wrote that his best corrected vision in the left eye was 20/60 and that his vision in that eye was getting worse due to progressing cataracts. The clinician noted that, given the Veteran's history of existing retinal tears in the left eye, cataract surgery was not recommended due to an increased risk of retinal detachment. At his February 2016 Board hearing, the Veteran testified that he had no light perception in his right eye. He stated that his physician wanted to remove the eye but postponed it due to his overall health. He also reported that his left eye had developed a cataract and he was losing vision in that eye, as well. An April 2016 VA treatment record indicates that the Veteran had corrected left eye visual acuity of 20/125 and no light perception in the right eye. A July 2016 VA treatment record indicates that the Veteran had no light perception in the right eye and 20/100 corrected vision in the left eye. In February 2017, the Veteran was afforded a VA examination. The examiner diagnosed multiple proliferative vitreoretinopathy retinal detachments with no light perception and phthisis bulbi of the right eye and dense combined cataract of the left eye. The Veteran reported no vision in the right eye and severely reduced vision and glare in the left eye. Visual acuity in the left eye was 10/200 for uncorrected distance, 20/200 for corrected distance, and 20/200 for corrected near. The Veteran had legal blindness in the left eye based on visual field loss. A May 2017 VA treatment record states that the Veteran wears thick glasses, is legally blind, and must hold items close to his face to read them. Another May 2017 VA treatment record states that the Veteran's left eye vision is 6/200 up to and including 20/200. A June 2017 VA treatment record states that the Veteran could not read anything with small print, had trouble staying in the lines when writing, had trouble identifying items while shopping and reading directions on food, was bothered by light, and had trouble with glare when watching television. His distance visual acuity with correction was no light perception in the right eye and 20/150 in the left eye. During the period on appeal, the Veteran had floaters, retinal tears, retinal breaks, cataracts, blurred vision, low vision, decreased visual acuity, did not meet the minimum standard vision to obtain a driver's license, had tired eyes, uncomfortable eyes, headaches, sleepiness, lost concentration, trouble remembering what he had read, double vision, words moving on the page, a "pulling" feeling around the eyes, words blurring, would lose his place while reading, would re-read the same lines, saw flashes of light, had loss of peripheral vision, had loss of depth perception, bumped into objects causing bruising, did not seeing curbs or inclines or declines and would fall off of them, had difficulty reading, would trip, would walk into walls, had difficulty writing within the lines, had trouble identifying items while shopping and reading directions on food, was bothered by light, had trouble with glare when watching television, had visual acuity worse than 5/200, could not detect hand motion or count fingers at any distance, had no light perception in one eye, and was legally blind. Given these facts, and affording the benefit of the doubt to the Veteran, a 100 percent rating is warranted during the relevant period. 38 C.F.R. § 4.7. B. Right Shoulder Separation Arm limitation of motion is rated under diagnostic code 5201. A 20 percent rating is warranted for limitation of motion of the major arm to the shoulder level. A 30 percent rating is warranted for limitation of motion of the major arm to a point midway between the side and shoulder level. A 40 percent disability evaluation requires that motion of the major arm be limited to a point 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The average normal range of motion of the shoulder is forward elevation (flexion) from 0 to 180 degrees; abduction from 0 to 180 degrees; external rotation from 0 to 90 degrees; and internal rotation from 0 to 90 degrees. When the arm is held at the shoulder level, the shoulder is in 90 degrees of either forward elevation (flexion) or abduction. 38 C.F.R. § 4.71, Plate I. The average normal range of motion of the shoulder is forward elevation (flexion) from 0 to 180 degrees; abduction from 0 to 180 degrees; external rotation from 0 to 90 degrees; and internal rotation from 0 to 90 degrees. When the arm is held at the shoulder level, the shoulder is in 90 degrees of either forward elevation (flexion) or abduction. 38 C.F.R. § 4.71, Plate I. In August 2008, the Veteran was afforded a VA examination for his shoulder. The Veteran reported intermittent pain with overhead movement. He had stiffness, mild weekly flare-ups, pain, and limited overhead movement. On examination, he had range of forward flexion to 120 degrees, external and internal rotation to 75 degrees each, and no ankylosis. An X-ray study indicated that the shoulder was normal. The examiner indicated that the Veteran's shoulder disorder affected his daily activities, including having a moderate effect on chores, exercise, and sports, and a mild effect on recreational activities and dressing. The report of a July 2011 VA examination for Housebound Status or Permanent Need for Regular Aid and Attendance states that the Veteran's shoulder was swollen and he had restricted movement. In December 2011, the Veteran was afforded a VA shoulder examination. The examiner indicated that the Veteran was ambidextrous. The Veteran reported flare-ups resulting in increased pain with any use, including brushing his teeth. On examination, the Veteran had flexion to 180 degrees without pain and abduction to 180 degrees without pain. The Veteran had no additional loss of range of motion following repeated use testing. He had no functional loss due to pain; no pain on palpation; full muscle strength; no ankylosis; rotator cuff, clavicle, scapula, acromioclavicular (AC) joint, and sternoclavicular tests were all negative; no history of mechanical symptoms; no recurrent dislocation; and no arthritis. The examiner stated that the Veteran had "no current pathology of the right shoulder." A November 2012 VA treatment record indicates that the Veteran had below normal upper extremity grasp and strength. He had right shoulder flexion to 140 degrees and abduction to 90 degrees. A March 2014 VA treatment record indicates that the Veteran had below normal upper extremity grasp and strength. He had right shoulder flexion to 140 degrees and abduction to 90 degrees. A February 2015 VA treatment record states that the Veteran had pain starting in his shoulder that traveled to his neck. He reported increased pain with movement and functional limitations making it difficult for him to brush his teeth and get dressed. He had active flexion to 150 degrees and abduction to 150 degrees. He had full passive range of motion. He had decreased strength. He had positive tests indicating shoulder impingement. At his February 2016 hearing, the Veteran testified that he did not have full range of motion in his shoulder and that he had frequent swelling. He stated that his dominant hand was his right hand but he has learned to use his left hand due to his shoulder disorder. In January 2017, the Veteran was afforded a VA examination. The Veteran reported weakness, especially with lifting, pain, and joint swelling. He had flexion to 130 degrees, abduction to 110 degrees, and external and internal rotation to 50 degrees each. The examiner noted that he had pain that caused functional loss and that there was evidence of pain with weightbearing. The examiner could not give an opinion as to whether the Veteran had functional loss with repeated use over time or whether pain, weakness, fatigability, or incoordination limited his functional ability with repeated use over time because the Veteran was not examined after repeated use. Muscle strength was normal and there was no ankylosis. The examiner indicated that a rotator cuff condition and a clavicle, scapula, AC joint, or sternoclavicular joint condition were suspected and stated that the Veteran had a dislocation of the AC joint which affected his range of motion. No arthritis was detected. The examiner wrote that the Veteran had a functional limitation resulting in an inability to perform heavy lifting with the right upper extremity. During the period on appeal, the Veteran's right shoulder disorder caused pain; swelling; stiffness; flare-ups; functional loss; below normal strength and grasp; decreased range of motion; limited his overhead movement and ability to lift heavy objects; impacted his ability to do chores, exercise, sports, recreational activities, brush his teeth, and dress himself; impingement; a suspected rotator cuff condition; dislocation of the AC joint; and resulted in forward flexion limited to 120 degrees, abduction limited to 90 degrees, and external and internal rotation limited to 50 degrees each. Given these facts, the Board finds that the current 20 percent rating adequately reflects the Veteran's right shoulder limitation of motion and functional impairment during the relevant period. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). A rating in excess of 20 percent is not warranted as the Veteran is able to functionally raise his arm to 90 degrees, which is shoulder level. The disability does not warrant assignment of a separate compensable evaluation for impairment of his clavicle or scapula as such an evaluation would constitute pyramiding. 38 C.F.R. § 4.14. III. TDIU Analysis VA regulations allow for the assignment of TDIU when the schedular rating is less than total. Given the grant above of a 100 percent rating for the entire period on appeal, the Veteran is not entitled to a TDIU and the claim is denied. ORDER A rating of 100 percent since March 19, 2007, for post-operative bilateral detached retinas is granted. A rating in excess of 20 percent, since July 31, 2007, for right shoulder separation is denied. TDIU since March 19, 2007, is denied. REMAND The March 2017 JMR indicated that the Veteran's head injury with headaches may have worsened. The Veteran has not had a VA headaches examination since December 2011. Therefore, remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the Parties that forms the basis of the JMR); Harris v. Derwinski, 1 Vet. App. 180 (1991). Given the grant of a 100 percent rating for post-operative bilateral detached retinas, entitlement to special monthly compensation should be adjudicated by the RO. The case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to obtain an opinion as to the current nature of his head injury with headaches. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 2. Adjudicate the issue of entitlement to special monthly compensation and readjudicate the issue of an increased rating for head injury with headaches. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs