Citation Nr: 18144973 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 10-35 802 DATE: October 25, 2018 ORDER Entitlement to service connection for a left eye disability is denied. Entitlement to an extraschedular rating for bilateral hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for right eye retinal detachment is remanded. Entitlement to special monthly compensation based on the need for regular aid and attendance of another person or based on being permanently housebound is remanded. Entitlement to a total disability rating based on individual unemployability prior to October 28, 2015 is remanded. FINDINGS OF FACT 1. The Veteran did not have an in-service incurrence of a left eye injury or disease. 2. The Veteran’s bilateral hearing loss manifests in symptoms and functional effects that are considered in the schedular rating criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left eye disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an extraschedular rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 3.321(b), 4.85. Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1961 to August 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2010, October 2012, November 2013, and November 2015 rating decisions issued by the Department of Veterans Affairs (VA). In September 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. In February 2012, the Board remanded the appeal for further development. In an October 2012 rating decision, the Regional Office (RO) awarded an increased 20 percent rating for bilateral hearing loss, effective May 12, 2012. As this was less than the maximum benefit allowed under VA law and regulations, the claim for increase remained on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In a March 2013 rating decision, the RO awarded an increased 10 percent rating for right eye retinal detachment, effective July 22, 2009. As this was less than the maximum benefit allowed under VA law and regulations, the claim for increase remained on appeal. AB, 6 Vet. App. at 38. In a June 2015 decision, the Board denied the claim of entitlement to an increased rating for bilateral hearing loss and remanded the remaining issues on appeal. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). By way of a March 2016 Order, the Clerk of the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the denial of entitlement to an increased rating for bilateral hearing loss. Generally, the JMPR was based on inadequate consideration of an extraschedular rating. In May 2016, the Board remanded the claim of entitlement to an increased rating for bilateral hearing loss for further development regarding an extraschedular rating. The other issues on appeal were not considered due to ongoing development from the June 2015 remand. In an August 2017 decision, the Board considered all issues on appeal. The claim of entitlement to an increased rating for vertigo was granted; thus, it is no longer on appeal. The claim of entitlement to an increased rating for bilateral hearing loss was effectively bifurcated. The schedular evaluation was denied-in-part and granted-in-part and the extraschedular evaluation was remanded for further development. The remainder of the claims were remanded for further development. In a January 2018 rating decision, the RO awarded a total disability rating based on individual unemployability (TDIU) effective October 28, 2015. The decision indicated that the award constituted a full grant of the benefit sought on appeal. This is incorrect. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU may be considered part-and-parcel of a claim for increase. The claims for increase on appeal consider an appeal period from July 22, 2009 onward; thus, the award of TDIU from October 28, 2015 does not span the entire appeal period and is, therefore, less than the maximum benefit allowed under VA law and regulation. AB, 6 Vet. App. at 38. The claim of entitlement to TDIU prior to October 28, 2015 remains on appeal. The Board notes that this claim was not readjudicated in a supplemental statement of the case (SSOC); however, the Veteran is not prejudiced by this error because the claim will be remanded for further development, which will include such an issuance. Generally, the issues on appeal were last adjudicated in an April 2018 statement of the case (SOC), and June and July 2018 SSOCs. Since then, a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, was associated with the claims file. It has not been considered by the RO in the first instance, and it is unclear whether it was obtained by submission from the Veteran or via development by VA. See 38 U.S.C. § 7105(e) (automatic waiver exception does not apply to development by VA). Regardless, the evidence relates to claims that the Board will remand for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for a left eye disability The Veteran seeks entitlement to service connection for a left eye disability. For the reasons that follow, the Board finds that service connection is not warranted. The Veteran has current left-eye diagnoses of macula degeneration, diabetic retinopathy, pseudophakia, dry eye syndrome, and glaucoma (or glaucoma suspect depending on the medical record). January 2018 VA examination report; see, e.g., VA treatment record (1/25/2018). Neither the Veteran nor his representative have set forth a specific theory as to how the Veteran’s current left eye disabilities may be related to his active service. The Veteran’s service treatment records (STRs) do not document a left eye disease or injury. There was no complaints or treatment for a left eye problem. His July 1962 separation examination showed a normal clinical evaluation of the eyes, normal color vision, and 20/20 visual acuity bilaterally. On the Report of Medical History the Veteran completed in conjunction with that examination, he marked “no” to eye trouble. Both these records constitute contemporaneous evidence weighing against an in-service incurrence of left eye disease or injury. The Board is aware that during active service the Veteran suffered a right eye injury from a grenade launcher. While this was not documented in his STRs, he was consistent in this assertion and the incident served as the basis for the grant of service connection for his right eye retinal detachment. Historically, the Veteran did not report that the grenade launcher injury affected his left eye. There is one VA treatment record that shows the Veteran reported to his treating physician the history of his audiological problems and, in doing so, described the grenade launcher injury as causing a hemorrhage in his left eye; injury to the right eye was not mentioned. VA treatment record (12/17/2009). Given the historical consistency in the Veteran’s statements describing the grenade launcher injury to the right eye, it appears the description given during that appointment was in error. To the extent that it was not, the Board finds that it is outweighed by the Veteran’s own prior and subsequent statements describing the grenade launcher incident as causing a hemorrhage in the right, not left, eye. Moreover, the January 2018 VA examination report contains the opinion that the Veteran’s eye condition was less likely than not related to service. The rationale for this opinion is that the condition was caused by diabetic retinopathy as a result of diabetes, glaucoma which could be the result of diabetes or high blood pressure, macular degenerative that was age-related, and pseudophakia as due to cataract removal. There was noted to be no left eye injury in the claims file. This opinion was rendered by a doctor of optometry who reviewed the entire claims file, and, given the detailed rationale and the absence of competent conflicting opinion, the Board finds it to be the most probative piece of evidence of record in terms of the question of etiology. The Board would note that the question of whether an in-service incident could lead to a current left eye disability is a complex medical question upon which the Veteran has not been shown to possess the training or credentials needed to competently render an opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Board finds that the Veteran has multiple current left eye diagnoses, but there is no competent evidence of in-service incurrence of a left eye disease or injury. The evidence also does not suggest that the left eye diagnoses may be related to an already service-connected disability. See 38 C.F.R. § 3.310. The second element of service connection has not been met. As there is no in-service incurrence, the Board need not discuss the evidence pertaining to a nexus. There is no doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for a left eye disability is accordingly denied. Increased Rating 2. Entitlement to an extraschedular rating for bilateral hearing loss The Veteran seeks entitlement to an extraschedular rating for bilateral hearing loss. For the reasons that follow, the Board finds that an extraschedular rating is not warranted. Extraschedular ratings are available pursuant to 38 C.F.R. § 3.321(b). “Whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry”: If (1) the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). “[T]he first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms.” Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Although the first and second elements are interrelated, they involve separate and distinct analyses. Id. Thus, “an error with respect to one element does not necessarily affect the Board’s analysis of the other element.” Id. “If either element is not met, then referral for extraschedular consideration is not appropriate.” Id. at 494-95. On December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1). See 82 Fed. Reg. 57830. Effective January 8, 2018, an extraschedular rating is not available based on the combined effect of multiple service-connected disabilities. Id. This amendment is applicable to all claims received or pending before VA as of January 8, 2018. Id. As the Veteran’s claim was pending as of January 8, 2018, an increased evaluation based on the combined effects of his service-connected disabilities is not warranted. During a March 2010 VA examination, the Veteran reported difficulty understanding speech heard in the presence of background noise. An April 2011 VA treatment record shows he reported difficulty understanding what is said in conversation, particularly in noisy environments and on television. During a May 2012 VA examination, the Veteran reported substantial difficulty hearing on the telephone and noted that he has been unable to secure jobs requiring phone work for this reason. He also reported that he used to work as a driver but had to stop driving due to concerns that he might not hear sounds important for safe driving (e.g., sirens, other cars honking). He reported that hearing loss impedes his ability to communicate with others; thus, compromising the ability to perform work requiring understanding verbal commands and conversation with others. A September 2013 VA treatment record shows he reported good hearing in crowds but difficulty in one-on-one situations. During an October 2015 VA examination, the Veteran reported difficulty hearing speech in crowds, in the car, and over the phone. He reported that he relies on lip reading. Based on consideration of all evidence of record, the Board finds that referral for an extraschedular rating is not warranted because the first Thun element has not been met. The evidence does not reveal any extraschedular symptoms related to bilateral hearing loss. The Veteran’s vertigo was found to be a separate disability, and service connection for it was granted based on a secondary theory of entitlement; dizziness is a symptom of that disability. The Veteran’s functional impairment has also been considered. As demonstrated in the treatment records and examinations highlighted above, his descriptions of functional impairment consist entirely of decreased hearing acuity and difficulty understanding speech or hearing other sounds in various contexts. These are precisely the effects that the VA’s audiometric tests are designed to measure and are, therefore, contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Veteran’s hearing loss does not produce any other functional effects not contemplated by the rating schedule. In sum, the Veteran’s bilateral hearing loss does not produce any extraschedular symptoms or functional effects; thus, the first element of Thun has not been met. Accordingly, an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b). To the extent that his bilateral hearing loss may cause unemployability, that will be considered in the claim of entitlement to TDIU prior to October 28, 2015, which is discussed in the REASONS FOR REMAND section below. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for right eye retinal detachment is remanded. The Veteran seeks an increased evaluation for right eye retinal detachment. Remand is required for additional development. The Veteran underwent VA examinations in June 2012, November 2015, and January 2018. The June 2012 and November 2015 VA examination reports indicate that the Veteran’s right eye retinal detachment was productive of visual field loss and related testing was conducted. The Goldmann chart containing the results of visual field testing from the June 2012 VA examination is associated with the record. See VBMS document “Medical Treatment Record – Non-Government Facility,” receipt date 12/19/2012. The Goldmann chart from the November 2015 VA examination is not of record. Remand is required to obtain and associate that evidence. The Board notes that, historically, the Veteran’s right eye retinal detachment manifested in impairment of visual acuity and visual field. Indeed, the June 2012 and November 2015 VA examinations noted both forms of visual impairment, and the increased 10 percent rating awarded for the disability was predicated on contraction of visual field. In contrast, the January 2018 VA examiner indicated that the Veteran did not experience any loss of visual field. This discrepancy does not render the examination report inadequate or inaccurate; however, given the history of the disability, the Board finds the Veteran should be afforded another examination to evaluate its current severity. 2. Entitlement to a total disability rating based on individual unemployability prior to October 28, 2015 is remanded. 3. Entitlement to special monthly compensation based on the need for regular aid and attendance of another person or based on being permanently housebound is remanded. The Veteran seeks entitlement to TDIU prior to October 28, 2015. Prior to that date, he does not meet the rating hurdle for schedular consideration. 38 C.F.R. § 4.16(a). The evaluation of his right eye retinal detachment will necessarily affect the date he meets the rating hurdle. Accordingly, the claims are considered inextricably intertwined, and adjudication of the claim for TDIU is deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that it cannot grant TDIU on an extraschedular basis in the first instance. 38 C.F.R. § 4.16(b). To aid in expediting the resolution of this appeal, on remand, a claim for TDIU prior to October 28, 2015 should be referred to the Director, Compensation Service, for extraschedular consideration. To be clear, in ordering such development, the Board has made no preliminary conclusions regarding the effects of the Veteran’s service-connected disabilities, either alone or considered in the aggregate, on his ability to secure and maintain substantially gainful employment. The Veteran also seeks entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or based on being permanently housebound. The grant of one type of SMC does not preclude the grant of the other if they are based on different service-connected disabilities. A noted difference between the two types of SMC is that eligibility for entitlement to 38 U.S.C. § 1114(s) for being permanently housebound requires a claimant to have a single disability rated as total. TDIU can qualify as a “single disability rated as total” if it is awarded for only one service-connected disability. Bradley v. Peake, 22 Vet. App. 280, 293 (1998); VAOGCPREC 66-91 (Aug. 15, 1991). In this case, the Veteran’s award of TDIU was predicated on the combination of service-connected bilateral hearing loss and service-connected vertigo being considered a single disability of common etiology and thereby allowing him to meet the rating hurdle for schedular consideration. See June 2018 rating decision (awarding TDIU on a schedular basis under § 4.16(a)). Therefore, the TDIU was not awarded for only one service-connected disability and does not qualify as a “single disability rated as total” for the purposes of entitlement to SMC under § 1114(s). The adjudication of the pending claim for TDIU prior to October 28, 2015 will impact this determination moving forward. Accordingly, the claims are inextricably intertwined, and adjudication of the claim for SMC must be deferred. Harris, 1 Vet. App. at 183. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Goldmann chart from the November 2015 VA examination. 2. Schedule the Veteran for a VA eye examination to determine the current severity of his right eye retinal detachment. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. The most up-to-date Disability Benefits Questionnaire must be utilized, and information about visual field and visual acuity must be included therein. The examiner should clearly identify the symptoms, functional effects, and visual impairment attributable to the Veteran’s service-connected right eye retinal detachment. If certain eye symptoms are not related, that should be noted as well. If a visual field defect is found, the examination report must document the results of either the tangent screen or of the 30-degree threshold visual field with the Goldmann III stimulus size. A complete explanation must be provided for all opinions expressed. 3. Refer to the Director, Compensation Service, the claim of entitlement to TDIU prior to October 28, 2015. All documentation resulting from this referral must be added to the claims file prior to any readjudication. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel