Citation Nr: 18154911 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 03-28 048 DATE: December 4, 2018 ORDER From August 9, 2016, a 100 percent rating for traumatic glaucoma and cataract of the left eye is granted. Prior to August 9, 2016, a rating in excess of 30 percent for traumatic glaucoma and cataract of the left eye is denied. Special monthly compensation (SMC) under 38 U.S.C. 1114 (s) from August 9, 2016, is granted. REMANDED Entitlement to an initial rating in excess of 40 for stricture of the urethra, to include urinary incontinence, is remanded. Entitlement to an initial rating in excess of 40 percent for degenerative arthritis of the spine is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for dizziness, loss of balance, and falls is remanded. Entitlement to service connection for loss of bowel control is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to a higher level of SMC is remanded. FINDINGS OF FACT 1. Prior to August 9, 2016, the Veteran’s service-connected left eye disability resulted in visual acuity of hand motion only. 2. Prior to August 9, 2016, the Veteran’s nonservice-connected right eye disability did not result in visual acuity of 20/200 or less or peripheral field of vision of 20 degrees or less. 3. Resolving all doubt in the Veteran’s favor, from August 9, 2016, the Veteran’s service-connected left eye disability has resulted in visual acuity of 5/200 and his nonservice-connected right eye resulted in visual acuity of light perception only. 4. From August 9, 2016, the Veteran’s service-connected left eye disability has been rated 100 percent disabling and has other service-connected disabilities have been independently rated as 60 percent disabling. CONCLUSIONS OF LAW 1. From August 9, 2016, the criteria for a rating of 100 percent for glaucoma and cataract of the left eye have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.383, 4.84a, Diagnostic Codes 6013-6064. 2. Prior to August 9, 2016, the criteria for an evaluation in excess of 30 percent for glaucoma and cataract of the left eye have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 4.84a, Diagnostic Codes 6012-6070. 3. The criteria for SMC based on statutory housebound status from August 9, 2016, to present, are met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from January 1981 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2005, the RO confirmed and continued a 30 percent evaluation for the Veteran’s service-connected traumatic glaucoma and cataract of the left eye. In April 2007, the RO denied service connection for a right eye disability. The RO also denied a claim of entitlement to an increased rating for right elbow disability, status-post surgery. In February 2009, the Board, in pertinent part, denied service connection for a right eye disability as well as entitlement to increased ratings of the left eye and the right elbow. In March 2011, the United States Court of Appeals for Veterans Claims (Court), on the basis of a Memorandum Decision, reversed the Board’s February 2009 decision to the extent that it denied service connection for a right eye disability and increased ratings of the left eye and right elbow. In August 2011, the Board remanded the case for further development. In January 2014, the RO denied entitlement to SMC for aid and attendance and housebound status. In March 2015, the RO granted separate ratings for limitation of extension and supination of the right elbow and assigned noncompensable ratings from August 3, 2006, and granted service connection for surgical scar of the right elbow and assigned a noncompensable rating from October 27, 2011. In August 2016, the Veteran perfected an appeal regarding the assigned ratings and effective dates of service connection. In May 2017, the Board remanded the claim of entitlement to service connection for a right eye disability, increased ratings for the right elbow and traumatic glaucoma and cataract of the left eye, and SMC. This decision also granted an increased rating for hemorrhoids and migraine headaches; denied an increased rating for a right elbow scar; and denied earlier effective dates for the grant of service connection for migraine headaches, limitation of supination of the right elbow, and limitation of extension of the right elbow. In July 2017, the RO increased the Veteran’s disability rating for limitation of flexion, status post right elbow surgery, to 50 percent effective June 20, 2017, and granted a 30 percent disability rating for impairment of supination, right elbow, effective June 20, 2017. As the increased ratings do not represent a grant of the maximum benefits allowable, the issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In December 2017, the Board dismissed the claim of entitlement to service connection for a right eye disability; granted a 100 percent rating for traumatic glaucoma and cataract of the left eye from June 12, 2017; denied entitlement to a rating in excess of 30 percent for traumatic glaucoma and cataract of the left eye prior to June 12, 2017; and remanded claims for increased ratings for limitation of extension of the right elbow, limitation of supination of the right elbow, and right elbow, status-post surgery, as well as the claim for SMC based upon the need for aid and attendance and/or housebound status. The remanded claims pertaining to the elbow have now been returned to the Board, and thus, will be the subject of a later decision. In March 2018, the RO granted SMC based on housebound status effective June 12, 2017, and granted entitlement to automobile or other conveyance and adaptive equipment. In June 2018, the Court, on the basis of a Joint Motion for Partial Remand (Joint Motion), vacated and remanded the Board’s December 2017 decision to the extent that it denied a rating in excess of 30 percent for the left eye prior to June 2017. Increased Ratings As detailed above, in December 2017, the Board, in pertinent part, granted a 100 percent rating for traumatic glaucoma and cataract of the left eye from June 12, 2017, and denied a rating in excess of 30 percent for traumatic glaucoma and cataract of the left eye prior to June 12, 2017. In June 2018, the Court vacated and remanded the Board’s December 2017 decision to the extent that it denied a rating in excess of 30 percent for the left eye prior to June 2017. The Court reasoned that the Board improperly applied 38 C.F.R. § 3.383 (a)(1), which provides that compensation is payable for the combinations of service-connected and nonservice-connected disabilities (here the Veteran’s service-connected left eye and nonservice-connected right eye) as if both were service-connected where (i) visual acuity is 20/200 or less in both eyes or (ii) the peripheral field of vision for each eye is 20 degrees or less. The Court explained that it is undisputed that visual acuity of the left eye has been 20/200 or less since January 12, 2004, and that evidence shows that visual acuity of the right eye has been 20/200 or less as early as August 9, 2016. 1. From August 9, 2016, a 100 percent rating for traumatic glaucoma and cataract of the left eye is granted. As to the left eye, an ophthalmology report dated August 9, 2016, shows that the visual acuity was limited to no more than light perception. As to the right eye, after resolving any doubt in the Veteran’s favor, the Board finds that visual acuity of the right eye was 5/200 as early as August 6, 2016. Ophthalmology reports dated August 9, 2016, and October 11, 2016, show that visual acuity of the nonservice-connected right eye was 20/250 and 5/200, respectively. See, e.g., Joint Motion, 2 (June 2018). Under 38 C.F.R. § 3.383 (a)(1), compensation is payable for the Veteran’s service-connected left eye and nonservice-connected right eye because impairment of vision in each eye was rated at a visual acuity of 20/200 or less. Where visual acuity is limited to no more than light perception in one eye and 5/200 in the other eye, a 100 percent rating warranted. 38 C.F.R. § 4.79, Diagnostic Code 6064. Accordingly, as the Veteran has visual acuity limited to no more than light perception in one eye and 5/200 in the other eye as early as August 9, 2016, a 100 percent rating is warranted from August 9, 2016. 2. Prior to August 9, 2016, a rating in excess of 30 percent for traumatic glaucoma and cataract of the left eye is denied. Initially, the Board notes that where, as here, there is no evidence of anatomical loss of the of an eye or eye disability other than visual impairment, a 30 percent is the highest schedular rating for a single service-connected eye. See 38 C.F.R. 4.75 (d). Thus, entitlement to a rating in excess of 30 percent for the service-connected left eye disability prior to August 9, 2016, turns on whether the Veteran’s nonservice-connected right eye resulted in visual impairment sufficient to trigger the provisions of 38 C.F.R. § 3.383 (a)(1), which requires bilateral visual acuity of 20/200 or less or peripheral field of vision of 20 degrees or less. First, the evidence shows that the Veteran’s peripheral field of vision of the right eye has not been limited to 20 degrees or less at any time. As early as 2008, visual testing shows that the peripheral field of vision was normal in the right eye. See VA examination (April 2008). By October 2016, a VA examination report shows that peripheral field of vision was limited to 36 degrees (which is more than the limitation to 20 degrees needed to trigger 38 C.F.R. § 3.383 (a)(1)), based on the following results: Principle Meridians Right Eye (degrees) temporally 60.00 temporally down 45.00 down 35.00 down nasally 30.00 nasally 35.00 up nasally 30.00 up 25.00 up temporally 30.00 Remaining Field: 36.25 Accordingly, the competent medical evidence of record does not suggest and the Veteran’s attorney does not contend that right eye field of vision was so severe as to trigger the provisions of 38 C.F.R. § 3.383 (a)(1). Second, the evidence shows that visual acuity of the right eye was not limited to 20/200 or less prior to August 9, 2016. Historically, a February 16, 2012, private ophthalmology report shows that visual acuity of the right eye was 20/100. A November 2013 examination report for SMC shows that the examiner, a DO, checked a box indicating that the Veteran’s best corrected vision was 5/200 or worse in both eyes. While this evidence suggests that the Veteran’s right eye visual acuity could trigger the provisions of 38 C.F.R. § 3.383 (a)(1) (requiring visual acuity of 20/200 or worse), this report contains insufficient evidence to evaluate visual acuity. In this regard, the examination was not performed by a licensed optometrist or ophthalmologist, as required by 38 C.F.R. § 4.75 (a), and while the examiner checked a box indicating that best corrected vision was 5/200 or worse in both eyes, the examiner failed to provide actual measurements of vision acuity, let alone central uncorrected and corrected visual acuity for distance and near vision using Snellen’s test type or its equivalent, as required by 38 C.F.R. § 4.76. For these reasons, as it pertains to visual acuity, the November 2013 VA examination report bears no probative value. The August 9, 2016, private ophthalmology report indicates that the Veteran’s right eye visual acuity was 20/250, which is less than 20/200 needed to trigger the provisions of 38 C.F.R. § 3.383 (a)(1). While a licensed ophthalmology performed this examination, the examiner failed to indicate whether 20/250 represents the Veteran’s corrected distance visual acuity, which is required to evaluate visual acuity. Nonetheless, as the October 2016 VA eye examination report shows that right eye corrected distance was 20/200, the Board finds that the August 9, 2016, ophthalmology report marked a turning point in the state of the Veteran’s right eye visual impairment. Based on the facts found, it was at this point that it became factually ascertainable that an increase in severity occurred. See Swain v. McDonald, 27 Vet. App. 219 (2015). Accordingly, as discussed above, the Board resolves any doubt in the Veteran’s favor and finds that August 9, 2016, represents the earliest point where the Veteran’s right eye visual acuity could have triggered the provisions of 38 C.F.R. § 3.383 (a)(1). Prior to August 9, 2016, there is no probative evidence of right eye vision acuity of 20/200 or worse. Thus, as the evidence does not trigger the provisions of 38 C.F.R. § 3.383 (a)(1) prior August 9, 2016, the Board cannot compensate the Veteran for impairment of his nonservice-connected right eye prior to August 9, 2016. As a result, a rating in excess of 30 percent (that is, the maximum rating for a single, service-connected eye) for the service-connected left eye disability is not warranted. 3. SMC under 38 U.S.C. 1114 (s) from August 9, 2016, is granted. SMC on the basis of being housebound is assigned where a veteran has, in addition to a single, permanent service-connected disability rated 100 percent disabling, (1) additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). As a result of the Board’s decision herein, the Veteran’s service-connected left eye disability has been rated 100 percent disabling from August 9, 2016. Since that time, he has had other service-connected disabilities independently rated as 60 percent disabling. Under such circumstances, there is no need to establish factually that service-connected disabilities render a veteran substantially confined to his dwelling. Accordingly, SMC based upon housebound status from August 9, 2016, to present, is warranted. The issue of entitlement to higher level SMC is addressed in the remand below. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 40 percent for stricture of the urethra to include urinary incontinence is remanded. 2. Entitlement to an initial rating in excess of 40 percent for degenerative arthritis of the spine is remanded. 3. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is remanded. 4. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. 5. Entitlement to an initial rating in excess of 10 percent for dizziness, loss of balance, and falls is remanded. 6. Entitlement to service connection for loss of bowel control is remanded. 7. Entitlement to service connection for hearing loss is remanded. In September 2018, the Veteran filed a notice of disagreement with the September 2018 rating decision that (i) granted service connection for stricture of the urethra and urinary incontinence with an initial 40 percent rating, effective August 03, 2006; (ii) granted service connection for degenerative arthritis of the spine with an initial 40 percent rating, effective October 6, 2017; (iii) granted service connection for left lower extremity radiculopathy with an initial 20 percent rating, effective October 6, 2017; (iv) granted service connection for right lower radiculopathy with an initial 20 percent rating, effective October 6, 2017; (v) granted service connection for dizziness, loss of balance and falls with an initial 10 percent rating, effective October 6, 2018; (vi) denied service connection for loss of bowel control; and (vii) denied service connection for hearing loss. No further action was taken by the RO. Therefore, these claims must be remanded for statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). 8. Entitlement to a higher level of SMC is remanded. The Veteran’s attorney contends that the Veteran’s vision disorder warrants SMC under 38 U.S.C. 1114 (m), which provides that if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance, the monthly compensation shall be $3,671. See, e.g., Brief (October 18, 2018). The Veteran’s attorney also asserts that SMC is warranted on the basis of loss of use of the right elbow effective August 2008. Id. The claim for higher levels of SMC is also remanded, as it is inextricably intertwined with his remanded claims for increase. The matter is REMANDED for the following action: Issue a SOC: (i) entitlement to an initial rating in excess of 40 percent for stricture of the urethra to include urinary incontinence; (ii) entitlement to an initial rating in excess of 40 percent for degenerative arthritis of the spine; (iii) entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy; (iv) entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy; (v) entitlement to an initial rating in excess of 10 percent for dizziness, loss of balance, and falls; (vi) entitlement to service connection for loss of bowel control; and (vii) entitlement to service connection for hearing loss. Thereafter, only return those issues to the Board that the Veteran perfects his appeal by filing a timely substantive appeal. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel