Citation Nr: 21075378 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-61 923 DATE: December 20, 2021 ORDER A disability rating greater than 30 percent for right eye blindness with traumatic aphakia and open-angle glaucoma is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extra-schedular basis is remanded. FINDING OF FACT For the period on appeal, the Veteran's right eye corrected distance vision was 5/200, with no more than light perception in one eye, but not anatomical loss of one eye. CONCLUSION OF LAW The criteria for a disability rating greater than 30 percent for right eye blindness with traumatic aphakia and open-angle glaucoma are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code 6029-6064. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1978 to November 1978 and from February 1979 to March 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in August 2018. In August 2018, the Veteran testified at a travel Board hearing before the undersigned. The Board's August 2018 remand directed the RO to obtain any outstanding VA and private treatment records and to afford the Veteran a new VA examination to assess the current severity of his right eye disability. The Board finds that there has been substantial compliance with its August 2018 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). In his July 2021 Appellate Brief, the Veteran raised the issue of entitlement to a TDIU due to his service-connected right eye disability. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability, as an attempt to obtain an appropriate disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In his July 2021 Appellate Brief, the Veteran cites to his March 2021 VA examination, where the examiner found that the Veteran's right eye blindness affects his binocular vision, which would prevent certain employment that involves driving, climbing stairs, or working in places where the Veteran could easily bump into objects. As the record raises a question of whether the Veteran is unemployable due to his service-connected right eye disability, the issue of entitlement to a TDIU is properly before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating greater than 30 percent for right eye blindness with traumatic aphakia and open-angle glaucoma The Veteran seeks a higher disability rating for his service-connected right eye blindness with traumatic aphakia and open-angle glaucoma, which is currently rated as 30 percent disabling under Diagnostic Code 6029-6064, which is analogous to aphakia or dislocation of crystalline lens (Diagnostic Code 6029) under the criteria for visual impairment with no more than light perception in one eye (Diagnostic Code 6064). 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. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Subject to the provisions of § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). Under both the former and revised criteria for Diagnostic Code 6064, when visual acuity in one eye (the poorer eye) is 5/200, with no more than light perception, and vision in the other eye is 20/40, a 30 percent rating is assigned. 38 C.F.R. § 4.79. The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. The evaluation for visual impairment of one eye should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under DC 7800). 38 C.F.R. § 4.75(d). Based on a review of the relevant evidence, the Board finds that a disability rating greater than 30 percent for right eye blindness with traumatic aphakia and open-angle glaucoma is not warranted. As the amended regulations went into effect during the rating period on appeal, both the former and revised criteria under Diagnostic Code 6064 are for consideration, which instruct to evaluate the Veteran's right eye blindness based on visual impairment. For the next-higher 40 percent disability rating to be warranted, the evidence must show anatomical loss of the right eye with vision in that eye being 5/200. As the Veteran is only service-connected for his right eye, the visual acuity of his non-service-connected left eye is considered to be 20/40 for purposes of evaluating right eye visual impairment. 38 C.F.R. § 4.75(c). Here, the February 2016 and March 2021 VA examinations reflect right eye corrected distance vision measuring 5/200. However, the 2016 and 2021 examiners found no evidence of anatomical loss of the right eye, and post-service treatment records are also silent for this evidence. Thus, when combining right eye visual acuity of 5/200 with visual acuity in the non-service-connected left eye of 20/40, pursuant to 38 C.F.R. § 4.75(c), this equates to a 30 percent disability rating based on visual acuity, the highest available disability rating for visual impairment of an eye where there is no anatomical loss of the eye. Therefore, the currently assigned 30 percent disability rating for right eye blindness with traumatic aphakia and open-angle glaucoma is appropriate, and a higher rating is not warranted. The Board has also considered whether a higher rating under a different diagnostic code is warranted. As previously stated, the evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. For the next-higher 40 percent rating to be warranted under either Diagnostic Code 6013 (open-angle glaucoma) or Diagnostic Code 6029 (aphakia), based on visual impairment, the evidence must show anatomical loss of the right eye with vision in that eye being 5/200. 38 C.F.R. § 4.79. Here, despite the Veteran's right eye corrected distance vision of 5/200, the 2016 and 2021 VA examinations and post-service treatment records do not demonstrate anatomical loss of the right eye. Therefore, a higher rating under a different diagnostic code is not warranted. A note under Diagnostic Code 6064 also instructs to consider whether entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350 is warranted when there is no more than light perception in one eye, as is the case here. However, the Board notes that the Veteran is already in receipt of SMC under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of one eye having only light perception, effective September 15, 1993. Further, as the medical evidence of record does not demonstrate bilateral visual acuity of 5/200 or less, SMC under 38 U.S.C. § 1114(l) (blindness in both eyes), is also not warranted. In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating greater than 30 percent for right eye blindness with traumatic aphakia and open-angle glaucoma, the claim must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a TDIU on an extra-schedular basis is remanded. The Veteran asserts that he is entitled to a TDIU due to his service-connected right eye disability. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Here, the Veteran does not meet the minimum rating requirements of § 4.16(a) for consideration of a TDIU rating on a schedular basis, as his combined disability rating is 30 percent However, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extra-schedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Although the Board may not grant a TDIU in the first instance under this regulation, it must consider whether referral to the Director of Compensation and Pension Service (Director) for extra-schedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Referral to the Director is warranted when there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); see 38 C.F.R. § 4.16(b) (stating that, when submitting a veteran's case to the Director, "[t]he rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue"). The Veteran contends that he is unable to work due to his service-connected right eye disability. In September 1993, he submitted a VA Form 21-257 Income-Net Worth and Employment Statement stating that he ceased working full-time as a computer operator in 1990 due his service-connected right eye disability. He indicated that he is a high school graduate with no specialized training. Moreover, the February 2016 and March 2021 VA examiners opined that the Veteran is unable to perform work that requires a need for binocular vision, such as jobs that require driving, or work that requires climbing stairs or being too close to objects that he could bump into, due to his service-connected right eye blindness. Based on the evidence above, the Board finds that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected right eye disability. As the Board is precluded from awarding an extra-schedular TDIU in the first instance, on remand, the issue of entitlement to a TDIU on an extra-schedular basis should be referred to VA's Director of Compensation and Pension Service. The matter is REMANDED for the following action: 1. Refer the Veteran's claim for entitlement to a TDIU on an extra-schedular basis to the Director of Compensation and Pension Service for consideration under 38C.F.R. § 4.16(b). A full statement regarding the Veteran's service-connected disabilities, employment history, educational and vocational training, and all other factors pertaining to the issue must be provided. A copy of the Director's decision on this claim must be included in the electronic claims file. Should the Director indicate that further evidentiary development is required, such development should be undertaken. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.