Citation Nr: 18140775 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-52 380 DATE: October 5, 2018 REMANDED Entitlement to a rating in excess of 20 percent for bilateral pterygium, with excision and optic atrophy of the left eye, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU rating) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1954 to January 1956. On the Veteran’s October 2016 VA Form 9, he requested a hearing before the Board. However, in a written statement received in August 2018, he withdrew his request for a Board hearing. In a September 2018 brief, the Veteran’s representative raised the issue of entitlement to a TDIU rating in the context of the Veteran’s pending appeal for an increased rating for his bilateral pterygium disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a rating in excess of 20 percent for bilateral pterygium, with excision and optic atrophy of the left eye. The Veteran’s service-connected bilateral pterygium disability is currently rated as 20 percent disabling under Diagnostic Code (DC) 6066, which provides rating criteria for impairment of central visual acuity when visual acuity in one eye is 10/200 or better. During the pendency of the instant appeal, effective May 13, 2018, VA revised the criteria for rating disabilities of the organs of special sense (including eyes). While DC 6066 was not revised, the Board notes that DC 6034 (which governs ratings for pterygium) was revised. See 83 Fed. Reg. 15,321-322 (Apr. 10, 2018). The version of DC 6034 in effect prior to May 13, 2018 provides that pterygium is to be evaluated based on visual impairment, disfigurement, conjunctivitis, etc., depending on the particular findings. See 38 C.F.R. § 4.79, DC 6034 (2017). The version of DC 6034 which became effective on May 13, 2018 provides that pterygium is to be evaluated under the General Rating Formula for Diseases of the Eye, disfigurement, conjunctivitis, etc., depending on the particular findings, and combined in accordance with 38 C.F.R. § 4.25. See 83 Fed. Reg. 15,322 (Apr. 10, 2018). The Veteran’s most recent VA eye examination was conducted in November 2014. Thereafter, in his June 2015 notice of disagreement and in an accompanying June 2015 written statement, he alleged that his bilateral eye condition had worsened and that there had been a “continuous deterioration” of his eyesight. In addition, a July 2016 VA eye treatment record documented his chief complaint of “decrease in distance vision OU [in both eyes].” Furthermore, in a September 2018 brief, his representative noted that the Veteran’s disability picture “has worsened.” On remand, after all outstanding treatment records have been obtained, a new VA eye examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected bilateral pterygium disability, as there is an indication that the current record does not adequately reflect the severity of his condition. The examiner should give consideration to all applicable rating criteria (including the versions effective prior to and since May 13, 2018) in light of all pertinent diagnoses rendered at the examination. 2. Entitlement to a TDIU rating. During the pendency of the appeal, at the Veteran’s November 2014 VA eye examination, the VA examiner noted that the Veteran’s eye condition impacted his ability to work, with the impact described as “poor visual [a]cuity left eye, loss of binocular vision.” Thereafter, a January 2016 VA treatment record noted that the Veteran was retired from employment. As noted above, in a September 2018 brief, the Veteran’s representative raised the issue of entitlement to a TDIU rating in the context of the claim for an increased rating for the Veteran’s bilateral pterygium disability that is currently on appeal. See Rice, 22 Vet. App. at 447. Specifically, the Veteran’s representative noted therein that this eye disability had caused “marked interference” with employment for the Veteran. A remand of the TDIU rating claim is required in order for the Veteran to be notified of the requirements to establish a claim for a TDIU rating, and for him to be requested to complete a formal claim (VA Form 21-8940). The Agency of Original Jurisdiction (AOJ) should complete any necessary development for this claim. The matters are REMANDED for the following actions: 1. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to a TDIU rating. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate a claim for a TDIU rating, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. The Veteran should also be asked to complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his service-connected bilateral pterygium disability during the appeal period. Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records for the period from August 2016 to the present. 4. After all requested records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral pterygium disability. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed and the results reported. All pertinent symptomatology and findings must be reported in detail. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner should give consideration to all applicable rating criteria (including the versions of the eye rating criteria effective prior to and since May 13, 2018) in light of all pertinent diagnoses rendered at the examination. 5. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claim on appeal for entitlement to a rating in excess of 20 percent for bilateral pterygium, with excision and optic atrophy of the left eye (to include consideration of any newly applicable and/or revised rating criteria), followed by adjudication of the issue of entitlement to a TDIU rating (in light of the outcome of the increased rating claim and including whether extraschedular referral is warranted). If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel