Citation Nr: 20021746 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-22 634 DATE: March 26, 2020 REMANDED Entitlement to an initial rating in excess of 20 percent for right shoulder strain with degenerative changes status post SLAP tear debridement is remanded. Entitlement to an initial compensable rating for photophobia is remanded. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome and arthritis is remanded. Entitlement to an in initial rating in excess of 10 percent for right knee patellofemoral syndrome and arthritis is remanded. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the cervical spine is remanded. Entitlement to special monthly compensation (SMC) at the housebound rate is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1999 to November 2003, from July 2004 to November 2005, and from August 2008 to March 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse appeared and testified at a hearing in April 2017 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. These issues were previously before the Board in April 2017. The Board provided an increased 70 percent rating for PTSD and somatoform disorder. The issues were remanded to solicit releases for private medical records, to inform the Veteran of the requirements for a total disability rating based on individual unemployability (TDIU), and to afford the Veteran updated VA examinations. Previously, the issues of entitlement to service connection for bilateral blepharitis and right ankle strain with Achille’s tendinitis were on appeal. However, a March 2019 rating decision granted entitlement to service connection for these conditions. The March 2019 rating decision additionally provided an increased 20 percent rating for the Veteran’s right shoulder disability and an increased 10 percent rating for his bilateral pes planus, both for the entire period on appeal. The Board notes that the April 2017 Board decision and remand included entitlement to TDIU. This was found raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009), as part of his increased rating claims when the Veteran noted he was unable to work by the Social Security Administration (SSA) due to service-connected disabilities. With the increased ratings provided by the Board in 2017 and the RO in 2019, the Veteran is now in receipt of a combined 100 percent schedular rating. The Court, in Bradley v. Peake, 22 Vet. App. 280 (2008), found that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). As the Veteran’s testimony indicated that his photophobia itself was debilitating enough to render him unemployable, the Board finds addressing entitlement to TDIU remains on appeal as a downstream issue of entitlement to SMC. 1. Entitlement to an initial rating in excess of 20 percent for right shoulder strain with degenerative changes status post SLAP tear debridement is remanded. 2. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus is remanded. The Veteran contends that his right shoulder disability warrants a rating in excess of 20 percent, and his pes planus warrants a rating in excess of 10 percent. During his April 2017 Board hearing, the Veteran reported that he was in receipt of Social Security Disability Income (SSDI). His representative noted that he was granted SSDI due to light sensitivity conversion disorder, headaches, somatoform disorder, reverse chronic pain syndrome, and disorders of the right shoulder. The hearing transcript included that during a pre-conference hearing the Veteran’s representative indicated that they would be submitting additional evidence related to the SSDI grant and “buddy statements.” The electronic record does not show that the SSDI records or any lay statements were submitted after the hearing. The record include SSA records or attempts to obtain SSA records. As the Veteran’s SSA records may reasonably contain information relating to the Veteran’s disabilities on appeal, remand is required to obtain his SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). As the claims are being remanded, an additional attempt should be made to obtain a release for private treatment records from Bon Secours Pain Management Center. 3. Entitlement to an initial compensable rating for photophobia is remanded. As noted, the Veteran is in receipt of SSDI and has reported that one of the conditions for which SSDI was granted was “light sensitivity conversion disorder.” The claim must be remanded to obtain the SSA records. During the April 2017 Board hearing, the Veteran testified that he has extreme photophobia. When asked about incapacitating episodes, he testified that he spent some part of every day in a darkened room due to his photophobia. He stated that, at best, he could spend 8 hours of a day outside of his darkened room, and “on a good day” he would have 4 to 6 hours in the light. He testified that he would have to go to a dark place multiple times per day in a month. When out of a darkened room he would still stay in the shade. He indicated that he did not think he was employable due to his photophobia, and that he was unable to even care for his children while his wife was working due to his frequent need to stay in darkened rooms. The October 2017 Board decision included that the Veteran’s depression, pain, and sensitivity to light are collectively contemplated by and considered in his 70 percent rating for PTSD and 30 percent rating for migraine headaches with occipital neuralgia. The Board determined that the remaining symptoms of fluctuating vision, glare, watering eyes, and blurred vision could be considered as symptoms associated with his photophobia. A March 2012 rating decision granted entitlement to service connection for photophobia and provided a noncompensable rating as he had not had any incapacitating episodes in the prior 12 months. A June 2013 rating decision provided separately granted entitlement to tension and migraine headaches with occipital neuralgia with a 30 percent rating. The narrative included that he had headaches and photophobia since a February 2009 laser injury to his eyes. He reported when headaches occurred, he stayed in bed unable to do anything, with pain severity of 9 out of 10. He was provided a 30 percent rating for characteristic prostrating attacks occurring on average once a month over the last several months. A November 2016 rating decision continued a 30 percent rating for migraine headaches due to characteristic prostrating attacks occurring on an average once a month over the last several months. A September 2016 VA headache examination included that the Veteran had non-headache symptoms of nausea, vomiting, sensitivity to light, and sensitivity to sound. The examiner noted that his headache condition did not impact his ability to work. The October 2017 Board decision provided a 70 percent rating for PTSD with undifferentiated somatoform disorder, adjustment disorder and depressed mood. This included that during an April 2011 examination the Veteran noted he was unable to work due to his continued photophobia. His depressive symptoms were noted to include intermittent depressed mood, intermittent crying, irritability, social isolation, difficulty concentrating, feelings of inadequacy, diminished energy level, and diminished interest in his usual activities. The April 2011 examiner noted that the Veteran had a primary diagnosis of PTSD and a secondary diagnosis of undifferentiated somatoform disorder. There was conflicting data about whether the Veteran suffered a significant eye injury or whether he continued to suffer from a possible eye injury. The undifferentiated somatoform disorder diagnosis was based on the Veteran’s focus upon his physical complaints when there was no clear and obvious supporting medical data as a basis for his complaint. In assigning the 70 percent rating, the Board noted that the symptoms supporting that finding included chronic sleep impairment, depression, intermittent crying, irritability, social isolation, difficulty concentrating, feelings of inadequacy, diminished energy level, and diminished interest in his usual activities. Given the above findings related to the 30 percent rating provided for headaches and 70 percent rating for PTSD with somatoform disorder, anxiety, and depressed mood, the Board notes that the severity of the Veteran’s reported photophobia is not currently addressed. The psychiatric rating does not include contemplation of photophobia itself, although perhaps the social distancing that occurs, in part, due to his photophobia. Although his light sensitivity is listed as a symptom of his headaches on his headache examinations, it is not obvious that the 30 percent rating he is receiving contemplates how his photophobia “adversely affects his ability to function under the ordinary conditions of daily life, including employment.” See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In-service treatment records included a March 2009 record of worsening headaches, intense photophobia and nausea following laser injury to both eyes two to three weeks prior. His nausea was provoked by bright light. “Ophthalmology evaluation was normal, the issue of ability to deploy does not seem ot have been addressed. The light sensitivity is the limiting symptom.” A March 2010 Bon Secour Center for Pain Management record included that neurologists in Germany felt he had a laser radiation injury to his retina producing sensitivity and photophobia. By January 2012, Maryview treatment records included his complaint of severe constant eye pain and photophobia. An October 2013 (possible December 2013 if date provided is military styling) Physical Evaluation Board included was retired from service for major depressive disorder, migraines, and degenerative arthritis. Regarding his migraines, it was noted that he had migraine headaches with severe photophobia and a somatoform component. He suffered a “3D green laser beam flash to his eyes in a friendly fire incident with coalition forces during a convoy operation. Numerous ophthalmological examinations have showed no retinal damage and no organic reason for severe light sensitivity. However, he suffered daily photophobia induced headaches which required him to rest up to several days in a darkened room. He also suffered from nausea along with photophobia. The Veteran had “basically barricaded himself in an upstairs room and darkened all windows to avoid light. Additionally, he wears sunglasses and darkened contact lenses when exposed to light to make headaches tolerable. His extensive eye examinations, MRIs, and CTs failed to find an organic cause for the severe and unrelenting nature of his photophobia. It was noted that he was diagnosed with somatoform disorder with only photophobia and migraines as a component. The Veteran’s August 2010 Medical Evaluation Board record included that the Veteran had a “tendency to develop physical symptoms in response to psychological stress.” He was assessed with “somatoform disorder (photophobia/headaches).” Additionally, the Veteran noted that “his major problem was the light sensitivity that has been closely associated with his headaches.” He was diagnosed with migraine headaches with severe photophobia, and he was “unable to work on a daily basis because of the severe photophobia.” The Veteran is currently in receipt of a noncompensable rating for his photophobia under DC 6009, for unhealed eye injury. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, DC 6009 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009 which instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Under the former criteria, incapacitating episodes were defined as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Under the revised criteria, DC 6009 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye similarly instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Under the revised criteria, incapacitating episodes are defined as an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. The Veteran has been afforded two eye examinations. In April 2011, the Veteran reported pain, glare, sensitivity to light, watering, and blurred vision. Treatment included eye drops, pain medications, and dark contact lenses. He stated he had to wear sunglasses over the contact lenses. The examiner noted that the “severe photophobia” would affect his daily life and usual occupation. However, the examiner noted that the Veteran had not reported any incapacitating episodes. In December 2018, the Veteran was diagnosed with blepharitis (separately service connected), pigment mottling (macula), and photophobia. Regarding his photophobia, the examiner simply stated, “sensitivity to light.” The examiner selected that the Veteran had not had any incapacitating episodes in the prior 12 months, with the revised criteria definition contained in the examination form. The examiner selected that the Veteran’s eye condition did not impact his ability to work. On remand, after the SSDI records are obtained, the Veteran should be afforded a VA examination which addresses the interplay of his photophobia, headache, and psychiatric disabilities. The most recent examination in December 2018 barely addresses the Veteran’s photophobia claim, and indicates no impact on employment, when the Veteran’s MEB and testimony indicate that his photophobia is his greatest limitation. As the claim is being remanded, an additional attempt should be made to seek releases for medical records from Tidewater Eye Clinic. 4. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome and arthritis is remanded. 5. Entitlement to an in initial rating in excess of 10 percent for right knee patellofemoral syndrome and arthritis is remanded. In addition to obtaining the SSDI records, the Board finds that the Veteran must be afforded an adequate VA examination. Following a December 2018 knee examination, a May 2019 addendum was provided to address functional impact and various range of motion findings that were not adequately addressed in the initial examination. For the Veteran’s knees, it was noted he had normal range of motion of both knees, with objective pain only on the right. When addressing additional loss of range of motion during a flare-up, the evaluator noted that the loss of range of motion would “depend on the activity and severity of pain experienced; however, today’s degrees in range of motion do not appear suggestive of what one should expect considering the Veteran’s prior medical history and review of medical records. [The Veteran] needs to be evaluated by occupational and physical therapy for a true estimate of his limitations.” Given that the December 2018 examination had an addendum in May 2019 which addressed range of motion findings and indicated that the Veteran needed to be evaluated by occupational and physical therapy for a “true estimate of his limitations.” The Board will remand for an adequate examination. 6. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the cervical spine is remanded. Similar to the knee claims above, the Veteran was afforded a VA fee basis cervical spine examination in December 2018. An addendum statement was provided in May 2019 which noted that the Veteran was expected to have additional loss of range of motion when suffering pain when in flare-up…the loss of motion will depend on the activity and severity of pain; however, “today’s degrees in range of motion do not appear suggestive of what one should expect considering the Veteran’s prior medical history and review of medical records. [The Veteran] needs to be evaluated by occupational and physical therapy for a true estimate of his limitations.” The evaluator did not explain why the range of motion findings did not match the Veteran’s medical history and medical records. The evaluator did not indicate why an occupational and physical therapy review was necessary to estimate limitations. However, as the addendum indicated that the evaluator did not have the requisite background to answer the requested question for estimated loss of range of motion during a flare-up, the Board will remand for an adequate examination. 7. Entitlement to special monthly compensation (SMC) at the housebound rate is remanded. As noted in the introduction, the October 2017 Board decision initiated the claim of entitlement to TDIU based on the Veteran’s report of his inability to work due to his service-connected disabilities, specifically his photophobia in the context of his increased rating claims. The Veteran is currently in receipt of a combined schedular 100 percent rating. However, additional benefits may be available to the Veteran. See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008) (receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU). In Bradley, the Veteran had been in receipt of TDIU until the time at which he was awarded a 100 percent combined schedular rating. See, Bradley, 22 Vet. App. at 293. The Court determined, however, that “the Secretary should have assessed whether [the Veteran’s] TDIU rating was warranted based on his PTSD alone before substituting a combined total rating for his TDIU rating.” Id. at 294. The Court reasoned that “a TDIU rating for PTSD alone would entitle [the Veteran] to SMC benefits as an additional benefit not otherwise provided to persons with a 100 [percent] combined rating.” Id. Accordingly, under Bradley, VA should potentially consider whether TDIU is warranted for a particular service-connected disability even when a schedular 100-percent rating is already in effect for other service-connected disabilities in order to determine the veteran’s eligibility for SMC under section 1114(s). Id. As such, the claim of entitlement to SMC(s) is a downstream issue from the raised TDIU claim in the October 2017 claim. Currently, the claim is intertwined with the Veteran’s increased rating claims, particularly his photophobia rating. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Tidewater Eye Clinic and Bon Secours Pain Management Center. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s records, including medical records forming the basis of a determination, from SSA. Document all requests for information as well as all responses in the claims file. 3. Then, schedule the Veteran for a VA examination to address his photophobia in the context of his headaches and somatoform disorder. **The questions posed below will likely need to be answered by multiple examiners, i.e., ophthalmology, neurology, and psychiatry. All indicated tests and studies should be accomplished and the findings then reported in detail. Following a review of the record and interview of the Veteran, the evaluator should provide the following: (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s photophobia is the result of a retinal eye injury or otherwise a symptom of an eye disorder/injury? (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s photophobia is a symptom of a psychiatric disorder, such as somatoform disorder? (c.) Is it at least as likely as not (50/50 probability or greater) that the Veteran’s photophobia is a symptom of his migraine headaches? (d.) Address the Veteran’s contention that he has incapacitating episodes of light sensitivity/photophobia nearly daily. A complete explanation must accompany each opinion expressed. 4. Schedule the Veteran for VA knee examination. All indicated tests and studies should be accomplished and the findings then reported in detail. After review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Indicate all current symptoms associated with the Veteran's service-connected right and left knee disabilities. (b) Test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. (c) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. (d) Indicate the presence of any recurrent subluxation and/or lateral instability. ***Please note: The May 2019 addendum indicated that the Veteran needed to be evaluated by an occupational and physical therapist to determine a “true estimate of his limitations.” 5. Schedule the Veteran for VA cervical spine examination. All indicated tests and studies should be accomplished and the findings then reported in detail. After review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Indicate all current symptoms associated with the Veteran’s service-connected cervical spine disability. (b) Test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. (c) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. **Please Note: The May 2019 addendum indicated that the Veteran needed to be evaluated by an occupational and physical therapist to determine a “true estimate of his limitations.” 6. After completing the development requested above, readjudicate the Veteran’s remanded claims, including the downstream issue of entitlement to SMC at the housebound rate. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.