Citation Nr: 18156019 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-30 857 DATE: December 6, 2018 ORDER Entitlement to special monthly compensation (SMC) based on loss of use or blindness of one eye, having only light perception, is granted. REMANDED Entitlement to a rating in excess of 30 percent for right eye visual impairment is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU rating) is remanded. FINDING OF FACT For the entire period of claim, the Veteran’s service-connected right eye visual impairment is shown to have caused blindness in the right eye, such that he has only light perception in the right eye. CONCLUSION OF LAW The criteria for entitlement to SMC based on loss of use or blindness of one eye, having only light perception, have been met for the entire period of claim. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1963 to September 1965. After the Board remanded the case in November 2016 for the Veteran to be scheduled for a Travel Board hearing, that hearing was held in April 2017 before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2017, the case was remanded for additional development. Entitlement to SMC based on loss of use or blindness of one eye, having only light perception. VA provides SMC if a Veteran, as a result of service-connected disability, has suffered the loss of use or blindness of one eye, having only light perception. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. 38 C.F.R. § 3.350(a)(4). For the entire period of claim, the Veteran’s service-connected right eye visual impairment is shown to have caused blindness in the right eye, such that he has only light perception in the right eye. Specifically, a November 2011 private treatment record and an April 2012 VA eye examination report noted that the visual acuity in his right eye was “HM” [hand motion vision] only. In addition, an August 2017 VA eye examination report noted that his right eye vision was limited to no more than light perception only, and that he was not able to recognize test letters at 1 foot or closer with his right eye and was not able to perceive objects, hand movements, or count fingers at 3 feet with his right eye. The examiner was unable to determine whether the blindness was related to the service-connected disability. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the blindness is the result of service-connected disability. Accordingly, the Board finds that the criteria for entitlement to SMC based on loss of use or blindness of one eye, having only light perception, have been met for the entire period of claim. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for right eye visual impairment. When the Veteran filed his current increased rating claim in April 2011, his right eye disability was characterized as right eye contraction of visual field and was rated as 10 percent under Diagnostic Code 6080. A May 2013 rating decision denied entitlement to a rating in excess of 10 percent, and the Veteran perfected an appeal. Thereafter, a June 2018 rating decision recharacterized the Veteran’s right eye disability as right eye visual impairment and assigned an increased 30 percent rating under Diagnostic Code 6065, effective April 18, 2011, the date the Veteran filed the current increased rating claim. Because that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The rating for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye, and the rating for visual impairment of one eye is to be combined with rating for other disabilities of the same eye that are not based on visual impairment, such as disfigurement under Diagnostic Code 7800. 38 C.F.R. § 4.75(d); 83 Fed. Reg. 15,321-322 (Apr. 10, 2018). The Veteran has not had anatomical loss of the right eye, and his right eye disability is already rated 30 percent. Nevertheless, at the August 2017 VA eye examination, the VA examiner noted that the Veteran had scarring or disfigurement attributable to the right eye disability, consisting of diffuse corneal scarring in the right eye with central calcium deposits, with surface contour of the scar elevated or depressed on palpation, or inspection in the case of sclera. Before the Board can make a fully-informed decision as to whether an increased or separate rating for right eye scarring or disfigurement is warranted, to possibly be combined with the rating for right eye visual impairment, all outstanding pertinent treatment records must first be obtained. In particular, the evidence of record indicates that the Veteran was receiving treatment for the right eye disability during the appeal period from a private physician, Dr. Muldoon, to include at the time of an April 2012 VA eye examination and at the time of his April 2017 Board hearing. However, the most recent treatment report of record in the claims file from Dr. Muldoon is dated in November 2011. Following the Board’s July 2017 remand, an August 2017 letter asked the Veteran to provide authorization for VA to obtain the records of all private treatment he had received “since June 2012” for his right eye disability, and the Veteran responded in August 2017 by submitting a VA Form 21-4142, Authorization to Disclose Information to VA, identifying treatment from Dr. Muldoon, but only for the period from 2006 to 2008. Remand is required in order for all outstanding pertinent treatment records to be obtained and associated with the claims file. 2. Entitlement to a TDIU rating. At the Veteran’s August 2017 VA eye examination, it was noted that his current occupation status was “retired” and that his right eye condition would impact his ability to work, as follows: “Patient is essentially monocular [and] he can not perform any task requiring binocular vision[.]” A claim for a TDIU rating is part of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has made a claim for the highest rating possible for a service-connected right eye disability, and the record shows that he is currently unemployed. Therefore, the Board finds that a claim for a TDIU rating has been raised by the record and is currently before the Board. 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 using VA Form 21-8940. The Agency of Original Jurisdiction (AOJ) should complete any necessary development for the claim. The matter is 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 right eye disability at any time during the appeal period, including all records from Dr. Muldoon dating since November 2011. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 3. Thereafter, readjudicate the claim for a rating in excess of 30 percent for right eye visual impairment, to include whether a rating for right eye scarring or disfigurement is warranted, to be combined with the rating for right eye visual impairment). Also adjudicate the claim for TDIU. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel