Citation Nr: 18150876 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 13-16 369 DATE: November 16, 2018 ORDER A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, effective from August 16, 2008, subject to the laws and regulations governing the award of monetary benefits. A separate 30 percent disability rating based upon asymmetry of the eyes is granted, effective from September 30, 2004, subject to the laws and regulations governing the award of monetary benefits. REMANDED The appeal for VA compensation for left eye glaucoma claimed as secondary to or aggravated by right eye blindness and/or left eye visual field reduction is remanded. The appeal for an initial disability rating for blindness in the right eye as a not reasonably foreseeable outcome of surgery, as 30 percent disabling from September 2004 to April 2011; and rated together with left eye visual impairment as 50 percent disabling from April 2011 to the present, is remanded. FINDINGS OF FACT 1. VA compensation is in effect for blindness in the right eye with left eye visual field constrictions, rated as 50 percent disabling; spondylolysis at L-5, rated as 40 percent disabling, and radiculopathy of the right leg, rated as 20 percent disabling. Additionally, the Board is ordering the assignment of a separate 30 percent disability rating for asymmetry of the eyes. 2. The Veteran has an 8th grade education, with previous work experience in housekeeping, factory work, and pest control. 3. The Veteran first met the schedular criteria for an award of TDIU as of the day following his last day of employment, August 16, 2008. 4. The Veteran’s right eye is atrophied and opaque; his eyes are asymmetrical and different in appearance from each other. CONCLUSIONS OF LAW 1. TDIU due to service-connected disabilities is warranted, effective August 16, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 2. A separate disability rating of 30 percent is warranted for asymmetry of the eyes, effective September 30, 2004. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.75, 4.118, Diagnostic Code 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1969 to October 1970. Historically, a February 2010 Board decision awarded compensation benefits under 38 U.S.C. § 1151 for multiple retinal detachments and resultant right eye blindness following VA-performed cataract surgery. Multiple surgeries, to include a partial anterior vitrectomy, and several retinal re-attachment attempts, were performed over the subsequent year, but were unsuccessful at restoring right eye vision. Compensation benefits under 38 U.S.C. § 1151 are awarded and paid “as if” service-connected; however, no relationship to service is implied by such a grant. A March 2010 AOJ decision implemented the Board’s allowance by assigning an initial 30 percent rating for blindness in the right eye secondary to multiple detachments, under Diagnostic Code (DC) “6099-6070,” effective September 30, 2004. The AOJ also awarded special monthly compensation (SMC) under 38 U.S.C. § 1114(k) on account of loss of use of one eye having only light perception. The Veteran filed a claim for VA compensation benefits for left eye disability in January 2011. A May 2011 AOJ rating decision denied this claim. In a November 2011 rating decision, the AOJ awarded an increased 50 percent rating for right eye blindness, effective from April 30, 2011, under DC “6099-6063.” In February 2013, the AOJ granted compensation benefits for a left eye visual field constriction and moderate cataract (affecting central visual acuity) as secondary to service-connected right eye blindness. This disability was rated as 40 percent disabling, effective January 28, 2011, under DC “6027-6066” - thus reflecting separate disability ratings for each eye. In August 2014, the Veteran testified before the undersigned Acting Veterans Law Judge at a hearing at the RO held via videoconference. A hearing transcript has been associated with the record. The Board remanded the appeal in May 2015 for further evidentiary and procedural development. Such development has been accomplished. Upon remand, the RO determined that several prior RO decisions had involved clear and unmistakable error. After proposing these changes in an April 2018 decision, the RO implemented the proposal in July 2018. The July 2018 decision 1) severed a prior grant of compensation benefits for a left eye cataract, and 2) re-rated the impairment involving both eyes as 50 percent disabling together, rather than the prior separate ratings of 30 percent for the right eye and 40 percent for the left eye. Although this rating change was technical in nature, it had the effect of reducing the Veteran’s overall combined schedular disability rating from 90 percent to 80 percent, effective in October 2018. In the May 2015 remand, the Board also referred the question of entitlement to VA compensation benefits for an acquired psychiatric disorder related to his eye impairment to the RO for initial adjudication. This was accomplished in a March 2017 decision, when the RO denied compensation on the basis that the Veteran was not shown to have a confirmed psychiatric diagnosis during a 2016 VA examination, despite established diagnoses of anxiety and depression in his earlier treatment records. The Veteran was notified of this denial the same month. This letter also contained information as to how he could appeal the denial if he wished. He did not disagree with or perfect an appeal. Therefore, this denial has become final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If he and his representative wish to reopen this final denial, they should submit new and material evidence tending to show an established diagnosis of a mental health disorder. See 38 C.F.R. § 3.156. 1. TDIU The Veteran asserts that between his back impairment, and his limited eyesight, he cannot work. He is seeking VA unemployability benefits. TDIU may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident will be considered as one disability. Alternatively, a total disability rating for compensation based on unemployability may be assigned to a veteran who is unable to secure and follow a substantially gainful occupation by reason of his/her service-connected disabilities. The Veteran's employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether the Veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Review of the evidence reveals that the Veteran obtained an 8th grade education prior to entrance onto active duty. After discharge, he utilized VA vocational rehabilitation benefits to pursue a career as a machinist, a television repairman, and as a welder. It does not appear that he completed certifications, or indeed sought employment, in any of these areas, however. During the hearing on appeal, he testified that he had previously worked as a housekeeper, in a couple of factories, and in pest control over the years. On his application for TDIU, he indicated his back and eyes were negatively affecting his ability to perform his job in housekeeping, so he took a buyout and retired in 2004. However, the report of employment completed by his former employer indicates that the Veteran’s actual date of retirement was August 15, 2008. The Board chooses to accord greater probative weight to the documentation provided by the Veteran’s former employer, than to his own subsequent recollection many years later regarding the date of his retirement. The report of a June 2016 Social and Industrial Survey reflects the Veteran’s statement that he falls “all the time” and runs into things he cannot see. He reported he used to enjoy dancing but dancing is increasingly difficult with his eyesight difficulties, as he runs into people and falls against things he cannot see. He also cannot see the television very well. Based upon an extensive interview with the Veteran, the social worker opined that the Veteran’s poor eyesight would greatly impair his ability to maintain gainful employment. She also indicated that the Veteran is more depressed over the loss of his eyesight than he verbalizes. The report of a July 2016 VA eye examination reflects the examiner’s assessment that because the Veteran has no depth perception he would have problems accomplishing fine, detailed tasks. VA compensation is currently in effect for blindness in the right eye with left eye visual field constrictions, rated as 50 percent disabling; spondylolysis at L-5, rated as 40 percent disabling, and radiculopathy of the right leg, rated as 20 percent disabling. Additionally, the Board is ordering the assignment of a separate 30 percent disability rating for asymmetry of the eyes. Under the formula set forth at 38 C.F.R. §4.25, the Veteran’s combined disability rating is 80 percent disabling. He therefore meets the schedular criteria set forth at 38 C.F.R.§ 4.16. Upon review of the evidence, the Board finds that the Veteran is indeed rendered unemployable due to his service-connected disabilities. In particular, the combination of his severe back impairment and his vision impairment together render many forms of employment very difficult. In conjunction with his levels of education and prior job experience, buttressed by his hearing testimony that he took an early buy-out due to his service-connected difficulties (which have worsened significantly since his retirement in 2008), the Board concludes that a TDIU is warranted. Review of the evidence of record shows that for purposes of the 38 C.F.R.§ 4.16 schedular criteria, the Veteran has met these criteria since the inception of his claim. After assigning the 30 percent disability rating for asymmetry discussed below, effective as of September 30, 2004, the Veteran’s disability ratings were 10 percent for spondylolysis at L-5, 30 percent for right eye blindness, and 30 percent for asymmetry. Because the two 30 percent ratings arise from the common etiology of the § 1151 grant following the Veteran’s VA eye surgery, they are added to reach a single disability rated at 60 percent under 38 C.F.R. § 4.16. TDIU is appropriate with a single disability rated as 60 percent disabling, when that disability produces unemployability. 38 C.F.R. § 4.16. In this case, because the Veteran was in fact employed until August 16, 2008, the earliest date he was eligible for TDIU is August 16, 2008. Thus, the evidence supports the award of TDIU based upon impairment from the Veteran’s right eye and his back, effective August 16, 2008. Separate rating for asymmetry The Veteran’s right eye rating has been assigned for blindness, or the absence of visual acuity. However, the evidence shows another significant impairment related to the right eye. Its appearance is very different from that of the Veteran’s left eye. On the report of a July 2016 VA examination, the examiner identified “gross distortion or asymmetry” of one eye, as the right cornea was opaque and very visible. His technical diagnosis is that of phthisis bulbi, or atrophy of the globe of the right eye. During the hearing on appeal, there was some discussion regarding whether the Veteran would be getting a prosthetic eye. However, recent medical records show he continues to have his own eye. A photograph of the Veteran’s two eyes has been taken for the file. Layperson review of the photograph reveals significant asymmetry; with the right eye appearing entirely opaque and of very different coloration than the left eye. The right pupil is not visible to the naked eye, being entirely obscured by the opacity. These differences in the eyes are strikingly noticeable. The maximum evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. However, the evaluation for visual impairment of one eye may be combined with the evaluations for other disabilities of the same eye that are not based on visual impairment such as a rating for disfigurement under Diagnostic Code 7800. 38 C.F.R. § 4.75. Diagnostic Code 7800 provides for rating disfigurement of the head, face, or neck. A 30 percent disability rating is provided for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, including the eyes. Higher ratings are warranted when more than two features are involved. 38 C.F.R. §4.118, Diagnostic Code 7800. The Veteran’s situation fits squarely within the criteria for a 30 percent disability rating under Diagnostic Code 7800. His diagnosis of atrophy of the eye implies tissue loss in the right eye. His eyes are asymmetric. Furthermore, the asymmetry is entirely a result of the surgery performed by VA in 2004 and the subsequent surgeries performed in the attempt to reattach his retina and restore his vision. The Board holds that a separate 30 percent disability rating for asymmetry is therefore warranted. In selecting an effective date for the award of a separate 30 percent disability rating based upon asymmetry, the Board notes that the evidence confirming the Veteran’s entitlement to this disability rating was obtained following the prior Board remand which requested such evidence. However, because the asymmetry is the result of the multiple surgeries in 2004, and because his eye has been stable since that time, we hold that the proper effective date for this award is the same as the effective date for the grant of service connection for right eye blindness, September 30, 2004. Thus, the evidence supports the award of a separate 30 percent disability rating for asymmetry of the eyes, effective September 20, 2004. REASONS FOR REMAND IF the Veteran is wholly satisfied with the grant of a TDIU reached above, he is informed that he may withdraw his remaining appeals, wholly or in part, by submitted a statement to that effect bearing his signature, or by instructing his representative to withdraw the appeal on his behalf. If he does not wish to withdraw the two remaining issues, he need take no action as development will proceed as outlined below. Unfortunately, the remaining two issues on appeal must be remanded to ensure compliance with the Board’s previous remand. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claim. Furthermore, the RO is required to fully complete the development ordered by the Board. Stegall v. West, 11 Vet. App. 268 (1998); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Left eye glaucoma In the 2015 remand, the Board requested a medical opinion as to whether glaucoma in the left eye was caused or aggravated by his service-connected right eye blindness and/or the service-connected left eye visual field constriction. No such opinion was obtained, however. We observe that the VA’s internal appeals tracking system inaccurately identified the issue on appeal as involving service connection for a left cataract, rather than for left eye glaucoma, so perhaps this mistake caused the confusion. Nevertheless, the file does not contain the medical evidence necessary to adjudicate the question of entitlement to VA compensation for left eye glaucoma and another remand is warranted. The RO initially denied service connection for left eye glaucoma in May 2011 on the basis that it was not shown during service or otherwise related to service. It is important to clarify that service connection is not the basis for the Veteran’s claim. Rather, he claims that his left eye glaucoma was caused or aggravated by his right eye blindness and/or left eye visual field constriction, which are compensated under the provisions of 38 U.S.C. § 1151, as having been a “not reasonably foreseeable outcome” following VA surgery in May 2004. It is important to clarify the basis for the claim, so that the medical opinion can be properly tailored to the facts of the case. Disability rating Regarding the appropriate disability rating assigned initially to the Veteran’s right eye blindness, and subsequently to both eyes rated together from April 2011 when compensation was granted for left eye visual field constriction, the Board observes that eye ratings are inherently complex. However, the Veteran is owed, under law, notice of the criteria which apply to his case, and a clear explanation as to the conclusions reached. The Veteran’s eye ratings are complicated by the fact that the initial rating involved only his right eye from September 2004 to January 2011. Compensation for left eye visual field constriction and left eye cataract was granted effective in April 2011. However, in July 2018, the RO determined that the left eye cataract award was the product of clear and unmistakable error and severed this portion of the award. (The Veteran has not challenged this severance.) Furthermore, during the time period at issue, from 2004 to the present, the regulations governing eye ratings have been amended twice, in December 2008 and again in May 2018. As the record stands currently, the Veteran has been provided with the substance of the 2008 version only. Therefore, the Veteran should be provided with a copy of each of the applicable criteria and the basis for the staged ratings at each point in time must be fully explained. In this regard, we observe that the Veteran does not appear to have incapacitating episodes related to his eyes, in the way those episodes are defined in any of the three versions of the eye rating criteria. He also has no diplopia or muscle function impairment. Therefore, it appears that the RO’s notice and analysis can focus on visual acuity and field of vision in reviewing the Veteran’s eye rating. As the appeal must be remanded anyway, the Veteran’s VA treatment records should be updated for the file. Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from July 2018 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left eye glaucoma has been caused OR aggravated beyond the normal progress of the disorder by the VA-compensated right eye blindness and/or the VA-compensated left eye visual field constriction. A detailed rationale for all opinions given, particularly cause and effect for the left eye glaucoma should be provided. If the clinician determines that further tests or studies and/or further clinical examination of the Veteran would be helpful, such tests, studies, and/or examination should be arranged. 3. The RO should then readjudicate the claim for VA compensation for left eye glaucoma. (continued on next page) 4. The Veteran should be provided with notice of the three sets of regulatory criteria for evaluating visual impairment and field vision impairment in effect since 2004. The RO should also provide a clear explanation applying these criteria to the Veteran’s eye impairments; considering impairment in the right eye from 2004 to 2011 and in both eyes from 2011 to the present. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Heather J. Harter