Citation Nr: 18153936 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 09-47 718 DATE: November 28, 2018 ORDER The reduction of the 50 percent disability rating to 10 percent for the service-connected diabetic retinopathy, effective from November 1, 2009, was proper; restoration of the 50 percent of the disability rating for diabetic retinopathy from November 1, 2009 is denied. A TDIU is granted. FINDINGS OF FACT 1. An August 2009 rating decision reduced the disability rating for diabetic retinopathy from 50 percent to 10 percent, effective November 1, 2009; as of November 1, 2009, the 50 percent rating for diabetic retinopathy had been in effect for less than five years; a preponderance of the evidence demonstrates that the diabetic retinopathy underwent material improvement under ordinary conditions of life and work. 2. The Veteran had four years of college education, had past relevant work experience as construction/project manager, electrician, and architect, and had not worked full time since approximately 2006; the Veteran was unable to maintain substantially gainful employment solely due to the service-connected disabilities. CONCLUSIONS OF LAW 1. The reduction of the disability rating for diabetic retinopathy from 50 percent to 10 percent was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.84a, Diagnostic Codes (DC) 6000-6091 (effective prior to December 10, 2008); 4.79, DCs 6099-6011, 6011-6077 (2018). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1981 to June 1985. He died in December 2015. The appellant claims as the Veteran’s surviving spouse who has been substituted as the claimant. These matters are on appeal from an August 2009 rating decision. In November 2016, the appellant testified at a Travel Board hearing before the undersigned. In April 2017, the Board denied restoration of the 50 percent rating for diabetic retinopathy, a TDIU, and entitlement to specially adapted housing and/or a special home adaptation grant. The Veteran appealed the portion of the Board's decision denying restoration of the 50 percent rating for diabetic retinopathy and a TDIU. The Court partially vacated the Board’s decision pursuant to a Joint Motion for Partial Remand (Joint Motion or JMPR) on the basis that the Board did not address whether it was reasonably certain that the improvement of diabetic retinopathy will be maintained under the ordinary conditions of life as required by 38 C.F.R. § 3.344. The Board finds that the duties to notify and assist the appellant in this case have been fulfilled. No specific contentions regarding the duties to notify or assist have been raised. 1. Rating Reduction Criteria and Restoration Analysis In January 2009, the RO proposed to reduce the 50 percent rating for the service-connected diabetic retinopathy to 0 percent. In August 2009, the RO reduced the disability rating from 50 percent to 10 percent for diabetic retinopathy, effective from November 1, 2009. Initially, the Board observes the RO complied with the procedural safeguards regarding notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. At the time that the rating reduction became effective, November 1, 2009, the 50 percent rating for the diabetic retinopathy had been continuously in effect for less than five years. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. For the entire period at issue (i.e., both prior and subsequent to the reduction), the service-connected diabetic retinopathy was rated under the criteria at 38 C.F.R. § 4.79, DC 7913-6076 for impairment of central visual acuity as a residual of diabetes mellitus. 38 C.F.R. § 4.27. VA amended its regulations for rating disabilities of the eye for all claims received on or after December 10, 2008. 73 Fed. Reg. 66,543 (Nov. 10, 2008). Despite the fact that the reduction occurred in an August 2009 rating decision, the rating for diabetic retinopathy remains under the former rating criteria for the eye. In light of the foregoing, the Board will consider both the former and amended criteria in order to ascertain which version would accord him the highest rating. The Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal, however rating criteria cannot be applied prior to their effective date. Kuzma v. Principi, 341 F.3d 1327 (2003). As will be discussed in greater detail below, at the time of the August 2009 reduction the bilateral diabetic retinopathy warranted no greater than a 10 percent disability rating under either the former or amended rating criteria. Eye impairment is rated on the basis of impairment of central visual acuity. Prior to December 10, 2008, DCs 6061-6079 contain the criteria to evaluate impairment of central visual acuity. 38 C.F.R. § 4.84a (2008). From December 10, 2008, DCs 6061-6066 contain the criteria to evaluate impairment of central visual acuity. 38 C.F.R. § 4.79 (2018). A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 20/100 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/70 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (4) or when corrected visual acuity is 20/50 in both eyes. 38 C.F.R. § 4.84a, DCs 6078, 6079 (2008); 38 C.F.R. § 4.79, DC 6066 (2018). A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 15/200 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/200 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/100 in one eye and 20/50 in the other eye; or (4) corrected visual acuity of 20/70 in one eye and 20/50 in the other eye. 38 C.F.R. § 4.84a, DCs 6077, 6078 (2008); 38 C.F.R. § 4.79, DC 6066 (2018). A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity in both eyes is 20/70; (2) corrected visual acuity in one eye is 20/100 and the other eye is 20/70; (3) corrected visual acuity in one eye is 20/200 in one eye and 20/50 in the other eye; (4) corrected visual acuity in one eye is 15/200 and 20/50 in the other eye; (5) corrected visual acuity in one eye is 10/200 and 20/40 in the other eye; (6) corrected visual acuity in one eye is 5/200 and 20/40 in the other eye; or (7) blindness of one eye and corrected vision to 20/40 in the other eye. 38 C.F.R. § 4.84a, DCs 6070, 6074, 6076, 6077, 6078 (2008); 38 C.F.R. § 4.79, DCs 6064, 6065, 6066 (2018). A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and 20/70 in the other eye; (2) corrected visual acuity of one eye is to 15/200 and 20/70 in the other eye; (3) corrected visual acuity in one eye is to 10/200 and 20/50 in the other eye; (4) corrected visual acuity is to 5/200 in one eye and 20/50 in the other eye; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye. 38 C.F.R. § 4.84a, DCs, 6066, 6070, 6073, 6076 (2008); 38 C.F.R. § 4.79, DCs 6064, 6065, 6066 (2018). A 50 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is to 20/100 in both eyes; (2) corrected visual acuity is to 10/200 in one eye and to 20/70 in the other eye; (3) corrected visual acuity is to 5/200 in one eye and 20/70 in the other eye; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, respectively. 38 C.F.R. § 4.84a, DCs, 6065, 6069, 6073, 6076, 6078 (2008); 38 C.F.R. § 4.79, DCs 6064, 6065, 6066 (2018). A 60 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/100; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/100; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/100; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/100; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/100 or 20/70 or 20/100, respectively. 38 C.F.R. § 4.84a, DCs, 6065, 6069, 6073, 6076 (2008); 38 C.F.R. § 4.79, DCs 6064, 6065, 6066 (2018). A 70 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/200; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/200; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/200; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/200; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/200. 38 C.F.R. § 4.84a, DCs 6064, 6068, 6072, 6075 (2008); 38 C.F.R. § 4.79, DCs 6064, 6065, 6066 (2018). An 80 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 15/200 and the other eye is 15/200; (2) corrected visual acuity of one eye is to 10/200 and the other eye is to 15/200; (3) corrected visual acuity of one eye is to 5/200 and the other eye is to 15/200; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 15/200. 38 C.F.R. § 4.84a, DCs 6064, 6068, 6072, 6075 (2008); 38 C.F.R. § 4.79, DCs 6064, 6065, 6066 (2018). A 90 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 10/200 and the other eye is 10/200; (2) corrected visual acuity of one eye is to 5/200 and the other eye is to 10/200; or (3) blindness or anatomical loss of one eye and corrected vision in the other eye to 10/200. 38 C.F.R. § 4.84a, DCs 6064, 6068, 6072, 6075 (2008); 38 C.F.R. § 4.79, DCs 6064, 6065, 6066 (2018). A 100 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 5/200 and the other eye is 5/200; (2) blindness or anatomical loss of one eye and corrected vision in the other eye to 5/200; or (3) blindness or anatomical loss of both eyes. 38 C.F.R. § 4.84a, DCs 6061, 6062, 6063, 6067, 6071 (2008); 38 C.F.R. § 4.79, DCs 6064 and 6065 (2018). In this case, the Board finds that the weight of the evidence showed material improvement of the diabetic retinopathy, including under the ordinary conditions of life, at the time of the rating reduction; therefore, the rating reduction from 50 percent to 10 percent effective from November 1, 2009 was proper, and the criteria for restoration of a 50 percent rating for the diabetic retinopathy are not met. Historically, in the June 2007 rating decision, the RO granted service connection for diabetic retinopathy with a 50 percent rating under DC 7913-6076 effective from November 20, 2006 based on the April 2007 VA examination results showing best corrected near and distance visual acuity of 20/60 in the right eye and 20/150 in the left eye, which was consistent with a 40 percent schedular rating under the former rating criteria with an additional 10 percent rating based on continuous active pathology. At the time of the rating reduction decision in August 2009, there was evidence showing that the rating criteria for a 10 percent rating for diabetic retinopathy were met. The November 2008 VA examination report showed a best corrected distant visual acuity of 20/40 for the right eye and 20/50 for the left eye, and a best corrected near visual acuity of 20/40 bilaterally, with no visual field defect, diplopia, or strabismus. In addition, there was a nuclear cataract noted in each eye that mildly impaired the Veteran's vision bilaterally. Because the best corrected distant visual acuity demonstrated at the November 2008 VA examination was corrected visual acuity of 20/50 in one eye (i.e., the left eye) and 20/40 in the other eye (i.e., the right eye), the disability picture for diabetic retinopathy as shown by the November 2008 VA examination findings was consistent with the 10 percent rating criteria under both the old and amended rating criteria for impairment of central visual acuity. The July 2009 VA examination findings similarly showed that the rating criteria for a 10 percent schedular rating for diabetic retinopathy were approximated under both the old and amended rating criteria for impairment of central visual acuity. The July 2009 VA examination report and addendum showed, in pertinent part, a best corrected distant and near visual acuity of 20/30 for the right eye and 20/50 for the left eye. Because the best corrected distant and near visual acuity demonstrated at the July 2009 VA examination approximated best corrected visual acuity of 20/50 in one eye (i.e., the left eye) and 20/40 in the other eye (i.e., the right eye), the disability picture for the diabetic retinopathy was consistent with the 10 percent disability schedular rating criteria. When compared to the April 2007 VA examination findings showing best corrected near and distance visual acuity of 20/60 in the right eye and 20/150 in the left eye, the evidence at the time of the rating reduction showing a best corrected visual acuity of 20/50 in the left eye and 20/40 in the right eye reflects a material improvement of visual acuity. Although the Veteran continued to complain of blurred vision at the time of the rating reduction decision, the improvement of visual acuity to the extent that the best corrected distant and near visual acuity had improved for both eyes despite any continued blurred vision, particularly when compared to the evidence of record at the time that the 50 percent schedular rating was assigned, necessarily shows an increased ability to function (i.e., see) under the ordinary conditions of life and work. Here, there is nothing in the record that suggests that he used his eyes in any manner other than ordinary conditions of life. Moreover, although not relied upon to justify the rating reduction, there is post-reduction evidence consistent with finding that material improvement of the diabetic retinopathy was demonstrated and was reasonably certain to be maintained under the ordinary conditions of life. Like the November 2008 and July 2009 VA examination reports, the March 2013 and October 2015 VA examination reports each show that the criteria for a 10 percent schedular rating for diabetic retinopathy were met. The March 2013 and October 2015 VA examination reports showed a best corrected distant visual acuity of 20/70 for the right eye and 20/40 for the left eye, and a best corrected near visual acuity of 20/70 for the right eye and 20/40 for the left eye, which is a level of visual impairment consistent with the 10 percent rating criteria; therefore, the post-reduction evidence, which shows some continued complaints of blurred vision with an overall improved visual acuity consistent with the old and amended 10 percent rating criteria, provides further support for finding that there had been material improvement of the diabetic retinopathy that was reasonably certain to be maintained under the ordinary conditions of life at the time of the rating reduction. For the foregoing reasons, the Board finds that the preponderance of the evidence demonstrates a material improvement of the diabetic retinopathy, including under the ordinary conditions of life, so as to warrant a rating reduction from 50 percent to 10 percent effective from November 1, 2009; therefore, the reduction was proper, and restoration of the 50 percent rating is not warranted. 38 C.F.R. § 3.105(e). TDIU Legal Authority Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. A veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran’s employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. In order for a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). 2. TDIU Analysis The Board notes that the service-connected disabilities were as follows: diabetes mellitus with nephropathy, rated as 40 percent disabling; right and left lower extremity peripheral neuropathy, each separately rated as 30 percent disabling; chronic urinary retention with loss of bladder function, rated as 30 percent disabling; and diabetic retinopathy, rated as 50 percent disabling prior to November 1, 2009, and as 10 percent disabling from that date. The combined disability rating was 90 percent prior to November 1, 2009, and 80 percent thereafter; therefore, the Veteran's service-connected disabilities met the percentage rating standards for TDIU. 38 C.F.R. § 4.16 (a). The Board must now consider whether the Veteran's service-connected disabilities rendered him unemployable. In this case, the Board finds that the evidence is in equipoise on the question of whether the service-connected disabilities were of sufficient severity so as to preclude substantially gainful employment. The Veteran contended that the service-connected peripheral lower extremity neuropathies and chronic urinary retention with loss of bladder function caused his unemployability. He reported four years of college education, past relevant work experience as a construction manager, project manager, and architect, and had not worked full time since approximately August 2006 when he was involved in a motor vehicle accident that resulted in a TBI and associated residuals. During the TDIU rating period at issue, the diabetes mellitus was managed through the use of insulin, prescribe oral hypoglycemic agents, and diabetic care twice per month, and nephropathy was manifested by normal renal function and persistent proteinuria. The peripheral neuropathies of the lower extremities were manifested by diminished to absent sensation, motor deficit with absent ankle reflexes and present knee reflexes, and normal muscle strength bilaterally, with the functional impairment of limited progress of physical therapy related to sensory loss in the left lower extremity and a capability of standing or walking for only very limited periods of time. The diabetic retinopathy was manifested by blurred vision and best corrected visual acuity approximating 20/50 or 20/70 in one eye (i.e., the left eye) and 20/40 in the other eye (i.e., the right eye). The chronic urinary retention with loss of bladder function was manifested by incomplete bladder emptying. The Veteran's work history as a construction manager, electrician, and architect involved visiting construction sites, meeting with vendors and suppliers, approving pay applications and change orders, handling and assembling electrical wiring, and overseeing the design and construction of buildings, and the symptoms and functional impairment associated with the service-connected disabilities interfered with the ability to manage insulin levels due to diabetes mellitus, walk or stand for significant periods due to diabetic neuropathies of the lower extremities, handle and assemble electrical wiring due to blurred vision, and generally supervise construction projects due to the impairments caused by all service-connected disabilities; therefore, the Board finds that the Veteran would have significant difficulty currently performing work duties as a construction manager or architect. The evidence further shows that the Veteran’s last employer made certain accommodations for the service-connected disabilities such as allowing him to take naps as needed keep a refrigerator in his office in order to better regulate his blood sugar levels. The appellant explained that the Veteran struggled to perform his job duties due to service-connected diabetes mellitus and explained that his former boss typically drove the Veteran to visit job sites and allowed him to arrive at work late when he had a low sugar reaction. See June 2018 affidavit from the appellant. Although the question of whether a veteran is capable of substantial gainful employment is ultimately a determination for the adjudicator, the Board notes that there is favorable and unfavorable medical opinion evidence of record addressing whether the Veteran was unable to secure or maintain substantially gainful employment solely due to service-connected disabilities. In an August 2018 employability evaluation report, a private vocational consultant provided a thorough summary of the Veteran’s relevant medical history regarding the service-connected disabilities, explained that the Veteran’s most recent employment was a protected work environment due to the series of accommodations made by the former employer, and opined that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment due to service-connected disabilities during the TDIU rating period until his December 2015 death. In November 2008, a VA examiner alternatively opined that the Veteran would be capable of substantially gainful employment. Both medical opinions are from competent medical professionals, are based on accurate and sufficient facts and data, and are supported by adequate rationale, so they are of equal probative value. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the service-connected disabilities alone were of sufficient severity so as to preclude substantially gainful employment. Therefore, a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel