Citation Nr: 21005120 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 03-26 602 DATE: January 29, 2021 REMANDED Entitlement to an initial extraschedular rating for bilateral pseudophakia with bilateral macular holes is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1957 to March 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2009, the Veteran testified at a travel Board hearing before one of the undersigned. In December 2012, the Veteran testified at a second travel Board hearing before the remaining two undersigned. All three of the Veterans Law Judges who have heard testimony on the issue addressed herein have reviewed the record and signed this decision. By way of background, the Board granted service connection for aphakia of the right eye and a nuclear sclerotic cataract of the left eye in October 2009. The RO implemented the Board’s grant of service connection for the Veteran’s eyes in a May 2010 rating decision. In December 2011, the Board remanded the issue of an increased rating as to the Veteran’s bilateral eye disability for further procedural development. The Board remanded the increased rating issue again in August 2014 for further evidentiary development. Following such development, in July 2015, the Board denied entitlement to an initial rating in excess of 30 percent for bilateral eye disability prior to January 6, 2009, granted entitlement to a rating of 50 percent for bilateral eye disability from January 6, 2009, and remanded the issue of entitlement to an initial extraschedular rating for bilateral eye disability for further development. It is from this July 2015 Board remand that the current decision flows. An October 2016 rating decision increased the Veterans’ bilateral eye disability rating to 60 percent effective August 8, 2016. The Veteran appealed the Board’s July 2015 denial as to the increased ratings for bilateral eye disability, as well as other issues, to the United States Court of Appeals for Veterans Claims (Court). In a December 2016 memorandum decision, the Court vacated the Board’s denial as to the issues of entitlement to an initial schedular rating in excess of 30 percent for bilateral eye disability prior to January 6, 2009 and a schedular rating in excess of 50 percent for bilateral eye disability from January 6, 2009, and remanded the matters for further development. Thereafter, a September 21, 2017 Board decision remanded the issues of entitlement to an initial schedular rating in excess of 30 percent for bilateral eye disability prior to January 6, 2009, a schedular rating in excess of 50 percent for bilateral eye disability from January 6, 2009 to August 7, 2016, and a schedular rating in excess of 60 percent for bilateral eye disability from August 8, 2016 for further evidentiary development. To date, development as to these matters remains outstanding. In August 2019, the Board remanded the issue of entitlement to an initial extraschedular rating for bilateral eye disability, finding that the maximization of schedular benefits for the Veteran’s service-connected eye disabilities was not resolved, as these matters were under further development by the RO following the Court’s December 2016 remand and the Board’s September 21, 2017 remand, and that addressing the extraschedular issue on appeal would be premature and improper. Lastly, issues that have not yet been re-certified for appellate review, as further development continues to be pending, to include action at the Agency of Original Jurisdiction (AOJ) level, include: (1) entitlement to service connection for arthritis; (2) entitlement to an initial schedular rating in excess of 30 percent for bilateral eye disability prior to January 6, 2009; (3) entitlement to a schedular rating in excess of 50 percent for bilateral eye disability from January 6, 2009 to August 7, 2016; (4) entitlement to a schedular rating in excess of 60 percent for bilateral eye disability from August 8, 2016; and (5) entitlement to a TDIU prior to December 17, 2018, all of which were remanded by the Board in its September 21, 2017 decision. Additionally, the claims of entitlement to a rating in excess of 20 percent for lumbar spine disability prior to January 17, 2018 and entitlement to a rating in excess of 40 percent for lumbar spine disability from January 17, 2018, also await further action at the AOJ level and are not before the Board at this time. These issues were remanded for further development in a September 8, 2017 Board decision signed by a different Veterans Law Judge who conducted the January 2015 Board hearing. Entitlement to an initial extraschedular rating for bilateral pseudophakia with bilateral macular holes is remanded. The Board’s September 21, 2017 decision remanded the claims of entitlement to an initial schedular rating in excess of 30 percent for bilateral eye disability prior to January 6, 2009, a schedular rating in excess of 50 percent for bilateral eye disability from January 6, 2009 to August 7, 2016, and a schedular rating in excess of 60 percent for bilateral eye disability from August 8, 2016, as well two non-eye-related claims, for further evidentiary development. Specifically, a retrospective opinion as to the Veteran’s eyes was sought regarding whether certain visual acuity noted in the Board’s remand directives were based on corrected or uncorrected distance vision. Upon completion of the Board’s remand directives, the Veteran and his representative were to be issued a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board, if the benefits sought as to these remanded issues were not granted. Moreover, this ongoing development regarding the Board’s September 21, 2017 remand directives was addressed again in the Board’s 2019 remand directives. Here, the question of ensuring maximization of schedular benefits for the Veteran’s service-connected eye disabilities remains outstanding, as this question continues to await further action to be taken at the AOJ level following the Board’s September 21, 2017 remand. Therefore, addressing the claim of entitlement to an initial extraschedular rating for bilateral pseudophakia with bilateral macular holes continues to be premature and improper. As the Veteran’s three schedular increased eye ratings remain inextricably intertwined with his claim for an initial extraschedular rating for bilateral eye disability, the extraschedular rating issue is remanded again until the AOJ has complied with the Board’s September 21, 2017 remand directives. The matter is REMANDED for the following action: Following the AOJ’s completion of any outstanding development regarding the Board’s September 21, 2017 remand directives as to the Veteran’s claims, to include: (1) entitlement to an initial schedular rating in excess of 30 percent for bilateral eye disability prior to January 6, 2009; (2) entitlement to a schedular rating in excess of 50 percent for bilateral eye disability from January 6, 2009 to August 7, 2016; and (3) entitlement to a schedular rating in excess of 60 percent for bilateral eye disability from August 8, 2016, return the claim of entitlement to an initial extraschedular rating for bilateral pseudophakia with bilateral macular holes to the Board for further appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, Associate 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.