Citation Nr: 18157258 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 10-36 519A DATE: December 12, 2018 REMANDED Entitlement to a rating in excess of 10 percent (prior to August 14, 2007), a rating in excess of 20 percent (from August 14, 2007 through February 27, 2014), a rating in excess of 30 percent (from February 28, 2014 through January 30, 2018), and a rating in excess of 50 percent (from January 31, 2018) for bilateral multiple diagnosis visual impairment is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU rating) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1954 to September 1958. On the Veteran’s October 2015 VA Form 9, he requested a hearing before the Board. However, during an October 2018 phone call with VA (memorialized in writing on an October 2018 VA Form 119, Report of Contact), he withdrew his request for a Board hearing in the current appeal. In August 2016, the case was remanded by another Veterans Law Judge for additional development. The case has now been assigned to the undersigned Veterans Law Judge. [The Veteran had also initiated an appeal of the denial of a compensable rating for facial scars of the left and right eyebrow areas. However, following a June 2007 statement of the case (which granted an increased 10 percent rating for such disability, effective as of the June 15, 2005 claim date, and denied a rating in excess of 10 percent at any time during the appeal period), the Veteran did not file a timely substantive appeal. Consequently, this matter is not before the Board.] 1. Entitlement to an increased rating for bilateral multiple diagnosis visual impairment. The Veteran filed the instant claim for an increased rating for his service-connected eye disability in August 2007. Therefore, for purposes of this appeal, the evaluation period begins in August 2006 (i.e., one year prior to the date of claim). When the Veteran filed his current increased rating claim in August 2007, his eye disability was characterized as residuals of bilateral eye injuries with probable traumatic glaucoma and was rated as 10 percent disabling under Diagnostic Code (DC) 6013-6079. A November 2007 rating decision denied entitlement to a rating in excess of 10 percent for such disability, and the Veteran perfected an appeal of this decision. Thereafter, an August 2010 rating decision granted an increased 20 percent rating for such disability under DC 6013-6078, effective August 14, 2007 (i.e., the date the Veteran filed his current increased rating claim). Thereafter, a June 2014 rating decision granted an increased 30 percent rating for such disability under DC 6013-6078, effective February 28, 2014 (i.e., the date VA received a February 2014 written statement from the Veteran alleging worsening of his eye disability). Thereafter, a February 2018 rating decision recharacterized the Veteran’s eye disability as bilateral multiple diagnosis visual impairment and granted an increased 50 percent rating for such disability under DC 6013-6065, effective January 31, 2018 (i.e., the date a VA ophthalmologist signed the Veteran’s January 2018 VA eye examination report). Because none of the aforementioned awards represented a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). During the pendency of the instant appeal, VA revised the criteria for rating eye disabilities on two occasions. The first set of revisions became effective on December 10, 2008, and the second set of revisions became effective on May 13, 2018. For the period of appeal prior to December 10, 2008, only the rating criteria in effect prior to December 10, 2008 may be considered. See 38 C.F.R. § 4.84a (2007). For the period of appeal prior to May 13, 2018, the rating criteria in effect prior to and as of December 10, 2008 may be considered. See 38 C.F.R. § 4.84a (2007); see 38 C.F.R. § 4.79 (2017). For the period of appeal beginning on May 13, 2018, the rating criteria in effect prior to December 10, 2008 and as of December 10, 2008 and as of May 13, 2018 may be considered. See 38 C.F.R. § 4.84a (2007); see 38 C.F.R. § 4.79 (2017); see 83 Fed. Reg. 15,321-322 (Apr. 10, 2018). Before the Board can make a fully-informed decision regarding the ratings assigned for the Veteran’s eye disability, all outstanding pertinent treatment records must first be obtained. In particular, the evidence of record indicates that the Veteran was receiving treatment for his eye disability during the appeal period from a private provider (the Barnes Retina Institute), referenced most recently in a VA treatment record dated in February 2010 (when it was noted that he was last seen at Barnes Retina Institute two months ago); in VA treatment records dated in April 2010, May 2010, July 2010, and October 2010 (noting treatment at Barnes Retina Institute in March 2010, April 2010, and May 2010 respectively, and requesting that the reports of these visits be scanned into the record); in a VA treatment record dated in January 2011 (when it was noted that he last saw a provider at Barnes Retina Institute about three to four months ago), and in VA treatment records dated in February 2011 and April 2011 (when fee-basis appointments at Barnes Retina Institute were requested). However, the most recent treatment report of record in the claims file from Barnes Retina Institute is dated in August 2009. In addition, a VA treatment record dated in July 2016 notes that the Veteran was authorized for treatment from an ophthalmologist through the Veterans Choice Program, and a VA treatment record dated in November 2016 notes that the Veteran was authorized for treatment from an optometrist through the Veterans Choice Program; however, there is no evidence of the Veteran receiving any Choice treatment until he underwent a private eye examination in June 2017 (and the report of this examination is of record in the claims file). In light of the above, the Board finds that 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. During the course of the current appeal, the Veteran raised the issue of entitlement to a TDIU rating in the context of the increased rating claim for his eye disability on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the Veteran reported at a November 2010 VA spine examination that he had been a truck driver since he was discharged from service and that he had stopped working two years ago due to his service-connected eye injury residuals. At his January 2018 VA eye examination, it was noted that his current occupation was “disabled” and that his eye condition impacted his ability to work, as follows: “[P]atient with severely reduced vision OD [in right eye] and limited visual field with reduced vision OS [in left eye.]” 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 (VA Form 21-8940). The Agency of Original Jurisdiction (AOJ) should complete any necessary development for this claim. The matters are 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 eye disability at any time during the appeal period, including all outstanding treatment records from the Barnes Retina Institute (to include since August 2009, as outlined above) and any outstanding treatment records pertaining to all Choice-authorized eye treatment. 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. Obtain the Veteran’s VA treatment records for the period from November 2017 to the present. 4. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claim on appeal for entitlement to a rating in excess of 10 percent (prior to August 14, 2007), a rating in excess of 20 percent (from August 14, 2007 through February 27, 2014), a rating in excess of 30 percent (from February 28, 2014 through January 30, 2018), and a rating in excess of 50 percent (from January 31, 2018) for bilateral multiple diagnosis visual impairment (to include consideration of all applicable rating criteria during each period), followed by adjudication of the issue of entitlement to a TDIU rating (in light of the outcome of the increased rating claim on appeal and including whether extraschedular referral is warranted). If any benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel