Citation Nr: 20048748 Decision Date: 07/21/20 Archive Date: 07/21/20 DOCKET NO. 09-16 564 DATE: July 21, 2020 ORDER Entitlement to an initial compensable extra-schedular evaluation for service-connected bilateral nuclear sclerotic and cortical cataracts, previously diagnosed as early cataractous changes, (hereinafter eye disability) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran's service-connected eye disability does not present such an exceptional or unusual disability picture with occupational impairment as to render impractical the application of regular schedular standards. 2. Throughout the period of appeals the Veteran did not meet the schedular criteria for a TDIU, and the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for an eye disability on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (West 2012); 38 C.F.R. §§ 3.102, 4.7, 4.76, 4.79, Diagnostic Codes 6027, 6066 (2019); 38 C.F.R. §§ 4.75, 4.84a, Diagnostic Codes 6028, 6079 (2008).). 2. Throughout the period of appeal, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran retired from active duty in the United States Army in April 2004, after serving 20 years. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2014, at which time it was remanded for additional development. That development having been completed; this case is once again before the Board. Increased Rating Initially, it is noted that the Veteran’s eye disability was denied a compensable schedular evaluation by the Board in September 2014 and the issue of entitlement to an extraschedular evaluation was remanded for further development as indicated above. Therefore, the scope of the present appeal is limited to the issue of entitlement to an extraschedular evaluation as shall be discussed in the following analysis. Having reviewed the record evidence, the Board finds that it does not show that the Veteran’s service-connected eye disability presents such an exceptional or unusual disability picture with occupational impairment as to render impractical the application of regular schedular standards. Medical evidence revealed a VA examination in June 2004 that showed the Veteran reporting an inability to see well at night mainly due to extreme glare, but that he can function in dark circumstances. On examination, the Veteran had a visual acuity at near without correction of Jaeger 5 in the right eye and Jaeger 5 in the left. At near with correction, the patient could read Jaeger 1 in the right eye and Jaeger 1 in the left. At distance without correction, the patient could see Snellen letters of a 20/200 size in the right eye and 20/200 in the left. At distance with correction, the patient could read 20/20 in the right eye and 20/25 in the left with an otherwise normal examination. The examiner reported an impression of severe glare disability with otherwise healthy eyes bilaterally. The examiner stated that the glare disability is a very subjective phenomenon and it is hard to explain in many cases. A visual examination in December 2006 revealed an examiner’s opinion stating that that night-time glare is responsible for the Veteran's loss of a specific job, was caused by or a result of the bilateral cataracts, which in turn, were caused by or a result of the diabetes mellitus. The examiner further stated that, certainly, there are many other types of employment not requiring driving an automobile at night which are available to the Veteran. In July 2012 a visual examination for cataracts it was indicated that there was a functional impairment whereby the Veteran has been prevented from obtaining work as a truck driver. A VA visual examination in June 2016 and June 2017 showed cataracts were successfully removed in both eyes in August of 2015. Therefore, there is no disability due to the cataracts because they are no longer present and is no longer a limiting factor for any duties. The examiners stated that there is no preclusion to occupational activity as a result of cataracts. In January 2019, the Veteran’s claim was forwarded to the Director of Compensation Service for review to determine entitlement to an extraschedular evaluation. That opinion noted that, based on the totality of evidence of record, extra-schedular entitlement to an increased evaluation was not warranted. It was noted that the VA examiners indicated, prior to cataracts being removed, that the Veteran was limited in occupational activity for driving at night, but there was ample opportunity for increased evaluations on a schedular basis. The opinion found that there is no evidence of frequent hospitalization, or marked interference with employment pursuant to Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). It was further noted that the test of whether a person is unable to pursue substantially gainful employment is whether a job is realistically within the physical and mental capabilities of the claimant under Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) and as a result there is no evidence of unemployability under any circumstances. It was found that the evidence only shows that the Veteran may be limited in performing the duties associated with a certain position; it does not convincingly show that his ability to work in other suitable positions is entirely compromised by disabilities he incurred in service pursuant to Brown v. Brown, 5 Vet. App. 413 (1993). Additionally, it was noted that there are several non-service-connected disabilities identified, which have not been differentiated from service-connected conditions (Cathell v. Brown, 8 Vet. App. 539 (1995)). Therefore, the opinion concluded, since no service-connected disabilities are identified individually or collectively, as the sole reason for the Veteran’s unemployability (Blackburn v. Brown, 4 Vet. App. 395 (1993)) increased evaluation is not warranted on an extra-schedular basis for cataracts in excess of 0 percent, pursuant to 38 C.F.R. § 3.321(b)(1). After review, the Board concludes the evidence in the appeal does not establish such an exceptional disability picture of the Veteran’s eye disability as to render the schedular criteria inadequate. The schedular rating criteria for rating the eye disability provide for disability ratings based on visual impairment, incapacitating episodes, or disfigurement. 4.79, Diagnostic Codes 6027, 6066 (2019); 38 C.F.R. §§ 4.75, 4.84a, Diagnostic Codes 6028, 6079 (2008).). Here, all the Veteran’s eye disability symptoms and described impairments may be considered contemplated by the schedular rating criteria. The Veteran’s eye disability has manifested in difficulty with night vision due to excessive glare and particularly interferes with driving a vehicle under such circumstances. The Veteran’s eye disability has been measured based his visual impairment throughout the period of appeal and there have been no showings of any visual acuity defect, visual field defect, or diplopia. Additionally, there have been no showings of incapacitating episodes or disfigurement. It is noted that the night vision deficiency has only caused problems with the Veteran’s past employment due to night driving, but does not otherwise cause any visual impairment. The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment. Notably, the Rating Schedule does not automatically assign a compensable evaluation where visual acuity is something other than 20/20. Thus, it contemplates visual imperfections at a non-compensable rate. The Veteran’s excessive glare has shown a particular occupational interference and has impacted his job in the past, but it is reasonably contemplated in the wide ranging visual impairment category, and due to its minimal impact on most other visual activities, it does not raise to a compensable level of disability as contemplated under the standards for visual impairment. Accordingly, the Board finds that the Veteran’s reported night vision related difficulties are factors contemplated in the regulations and schedular rating criteria that broadly consider visual impairment (including to visual acuity, visual field and muscle function), incapacitating episodes and disfigurement. Comparing the Veteran’s disability level and symptomatology of the eye disability to the rating schedule, the degree of disability throughout the entire period under consideration are contemplated by the rating schedule and the assigned rating is, therefore, adequate. As for related factors as marked interference with employment or frequent periods of hospitalization, the Veteran has not been hospitalized for his eye disability, and the interference with one aspect of a particular occupation is less than a marked interference with employment generally. As such, although the Board had previously remanded the issue for extra-schedular consideration, on analysis of that question, the Board does not find the disability picture pertaining to the Veteran’s eye disability to be so exceptional or unusual so as to render impractical the application of the schedular standard and require the assignment of an extraschedular rating. The Board concludes the evidence is against a finding that an extraschedular compensable disability rating is warranted. Therefore, the claim is denied. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. § § 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities 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. 38 C.F.R. § 4.16 (a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16 (a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his May 2009 VA Form 9 (Substantive Appeal), the Veteran indicated that he was unemployable due to his inability to drive at night as a result of his service-connected eye disability. The Veteran is currently service connected for diabetes mellitus type II evaluated at 10 percent effective May 1, 2004 and 20 percent from August 4, 2011; hypothyroidism evaluated at 10 percent effective May 1, 2004; and tinnitus at 10 percent from July 19, 2005. Bilateral knee disabilities, gastroesophageal reflux disease, benign prostatic hypertrophy, and the eye disability are also service-connected, but evaluated with 0 percent evaluations. From May 1, 2004, the combined rating was 20 percent; from July 19, 2005, the combined rating was 30 percent; and from August 4, 2011, the combined rating was 40 percent. The Veteran did not meet the schedular TDIU criteria for the entire appeal period as his combined disability rating was below 70 percent, or he did not have a service-connected disability evaluated at least 60 percent. Review of the claims record indicates the Veteran’s occupation was a truck driver, after service. He retired from the service as a Master Sergeant whose specialty was in the Unit Supply field. Incorporating the evidence already discussed above for the Veteran’s eye disability, it is noted that the Veteran’s eye disability was the primary impediment to commercial driving, as it resulted in an excessive glare that interfered with nighttime driving. The Veteran’s medical records and VA examinations did not note any functional interference with employment due to the Veteran’s other service-connected disabilities. Rather, the VA examiners of record and the extraschedular opinion from the Director of Compensation Service found that the Veteran’s eye disability only interfered with employment requiring nighttime driving, but would not preclude any other types of employment. There has been no basis provided by the Veteran as to why employment involving nighttime driving is the only type for which he is suited. Rather, it is noted that the Veteran has not responded to requests to provide his employment information or the factual basis for his claim. Although it is observed that the Veteran did not meet the schedular TDIU requirement as his combined disability rating was below 70 percent and he did not have a service-connected disability evaluated at least 60 percent, eligibility for TDIU may still be considered on an extraschedular basis. Here, the central inquiry is whether the Veteran’s service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs against finding that the Veteran’s service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment. Evidence shows the Veteran was employed as a truck driver after service, but the Veteran has not provided evidence dispositive of whether he has actually been unemployed throughout the period of appeal. While the Board does not doubt that the Veteran’s service-connected disabilities have an effect on his employability, the weight of the evidence does not present an exceptional or unusual disability picture such that the symptomatology associated with these disabilities, alone or in combination, is not contemplated within the relevant rating criteria. The Veteran does not meet the schedular criteria for TDIU. VA examinations held for the Veteran’s disabilities did not find a functional impact on the Veteran’s usual occupation, save interference with driving at nighttime. For his part, the Veteran has not identified or submitted any evidence demonstrating his entitlement to a TDIU on an extraschedular basis, or otherwise. Loss of industrial capacity is the principal factor in assigning schedular disability ratings, and the Board believes that the symptomatology associated with the Veteran’s service-connected disabilities are appropriately compensated at the levels currently assigned. As the Veteran has not otherwise identified or submitted any evidence demonstrating his entitlement to a TDIU under the circumstances of this case, entitlement to TDIU benefits is shown. Accordingly, the appeal is denied. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.