Citation Nr: 21010445 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-27 933A DATE: February 24, 2021 ORDER An initial evaluation in excess of 10 percent for glaucoma of the left eye is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 2, 2019 is denied. FINDINGS OF FACT 1. The Veteran’s left eye glaucoma has been manifested by impairment of visual field with remaining field of no less than 30 degrees and no more than 45 degrees, without impairment of visual acuity or muscle function; since May 18, 2018, the Veteran has had less than 3 incapacitating episodes related to glaucoma in a 12-month period. 2. The Veteran’s combined disability evaluation was 50 percent prior to April 2, 2019. 3. Prior to April 2, 2019, the Veteran’s service-connected disabilities alone did not render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left eye glaucoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.75, 4.79, Diagnostic Codes 6013, 6080. 2. Prior to April 2, 2019, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to January 1967. The Board remanded the matter for further development in April 2019 and June 2020. In April 2019, while the increased rating claim was pending before VA, the Veteran formally filed a claim for TDIU, in which he states that his current service-connected disabilities have prevented him from working. Subsequently, a TDIU was granted effective April 2, 2019 in a May 2020 rating decision, in which the Agency of Original Jurisdiction (AOJ) found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disability and left eye disability. The Veteran states that he raised the claim of TDIU on June 27, 2011. See September 2018 Statement in Support of Claim. Since the claimed effective date is within the appeal period for the increased rating claim on appeal, a claim of entitlement to TDIU prior to April 2, 2019 is part and parcel of the increased rating claim now before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran has appealed from the initial ratings assigned. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the United States Court of Appeals for Veterans’ Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). 1. Glaucoma of the left eye The Veteran’s left eye glaucoma, associated with diabetes mellitus, type II, has been assigned a 10 percent rating under Diagnostic Code 6013 effective December 18, 2009. Thus, the Board considers the evidence from December 18, 2009 to the present in evaluating the Veteran’s service-connected left eye disability. The Board notes that the Veteran is not service connected for a right eye disability. During the appeal period, VA revised schedule of ratings for eye disability, effective May 18, 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 pre- and post-May 2018 criteria indicate that a minimum 10 percent rating is warranted if continuous medication was required. Under the criteria prior to May 2018, Diagnostic Code 6013 instructed to evaluate pursuant to visual impairment due to open-angle glaucoma. Under the May 2018 criteria, Diagnostic Code 6013 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the pre- and post- May 2018 criteria is consideration of incapacitating episodes. With regard to 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 in the May 2018 version. There are otherwise no substantive changes to how those types of visual impairment are rated in any version of the regulations. The General Rating Formal for Diseases of the Eye 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. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091. Here, for the period after May 18, 2018, the Veteran has had at least 1 but less than 3 incapacitating episodes in a 12-month period, as noted in an August 2019 VA examination. The medical treatment records during the period indicate that the Veteran has had a followup clinic visit for checkup, while his glaucoma of the left eye has been managed by continuous medications administered by the Veteran himself on a regular basis. Thus, an evaluation in excess of 10 percent is not warranted under the rating criteria for incapacitating episodes for the period after May 18, 2018. Thus, the Board considers the other criteria for evaluation of visual impairment for the Veteran’s claim for higher rating. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Evaluation of impairment of muscle function is based on the degree of diplopia. The examiner must record test results for the four major quadrants (upward, downward, and right and left lateral) and the central field (20 degrees or less). 38 C.F.R. § 4.78(a). Here, the evidence shows that the Veteran has never had diplopia for the entire appeal period. Thus, the Board now considers the visual acuity and visual field. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). The table of Impairment of Central Visual Acuity encompasses Diagnostic Codes 6061-6066. 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). The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. Id. 38 C.F.R. § 4.75(d). 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). Further, under § 3.383(a), compensation is payable for the combination of service-connected and nonservice-connected disabilities, provided the nonservice-connected disability is not the result of the veteran’s own willful misconduct. As pertinent to eye disabilities, this is allowed where (i) the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or (ii) the peripheral field of vision for each eye is 20 degrees or less. 38 C.F.R. § 3.383. Here, the corrected distance vision for the Veteran’s service-connected left eye has remained 20/20 or better for the entire appeal period. Thus, an evaluation in excess of 10 percent is not warranted for impairment of visual acuity under Diagnostic Codes 6061 to 6066. Rather, the evidence shows that the Veteran’s left eye glaucoma resulted in contraction of visual field during the appeal period. Concentric contraction of visual field is evaluated under Diagnostic Code 6080, which provides the following: Where there is a remaining field of 46 to 60 degrees, a 10 percent rating is warranted for either bilateral or unilateral involvement. Alternatively, this equates to 20/50 vision in each affected eye. Where there is a remaining field of 31 to 45 degrees, a 30 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/70 vision in each eye. Where there is a remaining field of 16 to 30 degrees, a 50 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/100 vision in each affected eye. Where there is a remaining field of 6 to 15 degrees, a 70 percent rating is warranted for bilateral involvement and a 20 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/200 vision in each affected eye. Where there is a remaining field of 5 degrees, a 100 percent rating is warranted for bilateral involvement and a 30 percent rating is warranted for unilateral involvement. Alternatively, this equates to 5/200 vision in each affected eye. The Board now turns to the evidence. An April 2010 VA examination report includes a visual field chart (dated in late March 2010) showing a remaining visual field between 30 and 40 degrees. In the examination report, the examiner stated that the Veteran had a mild constriction of the visual field with approximately 33 degrees of central visual field remaining. The VA treatment records reflect that in October 2010, the Veteran’s left visual field was found to be normal; in September 2011 it was found to be grossly full; and in March 2013 it was found to be full. A March 2015 visual field test showed “non specific changes” with mean deviation of negative 2.75 in the visual field of the left eye. A May 2016 VA treatment record notes “non specific changes” with mean deviation of negative 0.15 in the visual field of the left eye. The August 2019 VA examination report reflects the examiner’s finding that the remaining visual field of the left eye was 16.5 degrees based on a visual field test. The August 2019 visual field chart is of record and consistent with that finding. However, about six months later, a February 2020 VA examination reflects a finding that the Veteran had a remaining visual field of 42 degrees in the left eye based on a visual field test. The February 2020 visual field chart is of record and consistent with that finding For the entire appeal period, the Veteran has had no vision in the right eye due an injury he incurred when a water heater exploded in August 1975. See, e.g., an April 1976 rating decision, an April 2003 VA examination report, April 2010 VA examination report. The most recent February 2020 VA examination determined that the Veteran has leucoma in the right eye and the vision in the right eye is limited to no more than light perception. The corrected visual acuity for distance in the right eye is 5/200 or worse. No diplopia was found. Lastly, for the entire appeal period, the evidence does not show that the Veteran’s left eye disability resulted in any impairment other than visual. Based on the evidence of record, the Board finds that the Veteran’s remaining visual field in the left eye has remained no less than 30 degrees. While the August 2019 VA examination reflects a finding that the remaining visual field in the left eye has decreased to 16.5 degrees, the Board finds that this test alone is not a basis for assigning a higher evaluation. Only six months later, the February 2020 VA examination report shows a remaining visual field of 42 degrees. Moreover, the VA treatment records show that prior to August 2019, visual tests initially showed a normal or full visual field, and later only minor, “non specific” changes.” The May 2016 visual field examination showed a mean deviation of only 0.15. Thus, the evidence does not show findings of significant changes to the Veteran’s left eye visual field prior to August 2019, which is consistent with the fact that the February 2020 VA examination shows a remaining visual field of 42 degrees. Similarly, the March 2010 visual field chart shows a visual field between 30 and 40 degrees, with the examiner finding that the Veteran had approximately 33 degrees of central visual field remaining, which was characterized as mild. In short, given the extreme difference between the August 2019 visual field findings and those prior to and subsequent to that examination, including only six months later, the Board finds that examination to be an outlier and not representative of a change in the severity of the Veteran’s visual field defect. Therefore, under Diagnostic Code 6080, as the Veteran’s left eye glaucoma has been manifested by remaining visual field of no less than 30 degrees and no more than 45 degrees, it is assigned a 10 percent rating and no higher. Because the peripheral field of vision of the Veteran’s service-connected left eye disability is not 20 degrees or less, his nonservice-connected right eye disability may not be considered for purposes of assigning an evaluation. See 38 C.F.R. § 3.383(a). In sum, the Board finds that the weight of the evidence is against the claim for evaluation in excess of 10 percent for service-connected left eye glaucoma. Lastly, the Board considered whether additional compensation is available for the Veteran under 38 U.S.C. § 1114(k) and 38 U.S.C. § 1114(s). VA law provides for special monthly compensation for blindness of one eye, having only light perception, as the result of service-connected disability. 38 U.S.C. § 1114(k). As the Veteran does not have blindness in the left eye, entitlement to special monthly compensation for blindness in one eye under 38 U.S.C. § 1114(k) is not available for the Veteran’s service-connected left eye disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. TDIU prior to April 2, 2019 In the June 2011 statement, the Veteran wrote that he had been incapacitated due to his nervous condition since 1975. In May 2019, he stated that his service-connected depression, eye condition, diabetes, hypertension, and erectile dysfunction prevented him from securing or following any substantially gainful occupation. May 2019 VA Form 21-8940. A TDIU may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155 ; 38 C.F.R. § 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability rated at 60 percent or higher; or two service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). During the appeal period prior to April 2, 2019, service connection was in effect for depressive disorder, rated at 30 percent; diabetes mellitus, type II with non compensable mild non proliferative diabetic retinopathy and erectile dysfunction, rated at 20 percent; and glaucoma of the left eye associated with diabetes mellitus, rated at 10 percent, with the total combined rating of 50 percent under 38 C.F.R. § 4.25. The evaluations assigned the Veteran’s service-connected disabilities did not meet the schedular criteria for TDIU at any point prior to April 2, 2019. See 38 C.F.R. § 4.16(a). The Board has considered whether referral for consideration of TDIU on an extraschedular basis is warranted. See 38 C.F.R. § 4.16 (b). The evidence shows that the Veteran’s service-connected disabilities did not cause unemployability prior to April 2, 2019. The Court has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the economic component is satisfied, as the Veteran has not worked since 1975 when he sustained an injury at work. As for the non-economic component, the evidence indicates that the Veteran had high school education and a construction drafting course. As for occupational history, the Veteran worked as a mason until 1975 when he sustained an eye injury due to explosion of water heater. April 1976 Rating Decision. He also reported having worked as electrician assistant for several construction contractors for 20 years and quit working in 1978 following the 1975 explosion accident, where he suffered loss of vision in the right eye and partial loss of vision in the left eye. April 2003 VA Examination Report. The Veteran applied for social security benefits in 1983; the psychiatric report provided for disability evaluation then indicates that the examiner opined the Veteran’s psychiatric disability was not severe enough to meet the disability criteria by itself and his left eye had adequate vision, but in combination with his right eye blindness, the Veteran met the criteria of being “disabled” under the regulations binding Social Security Administration. Thus, as the SSA decision is based in part on nonservice connected disabilities, namely right eye blindness, it is not probative on the issue of whether the criteria for TDIU are satisfied, which is based solely on consideration of service-connected disabilities. The evidence shows that during the appeal period, the Veteran’s service-connected diabetes mellitus, psychiatric disability, and left eye glaucoma were well managed with medications. Diabetes mellitus has been well managed with medications; at every followup visit to the clinic during the appeal period, his diabetes was stable with no indication that it resulted in any physical or mental difficulties. The Veteran’s psychiatric disability is not shown to have prevented him from obtaining or maintaining substantially gainful employment, alone or in conjunction with his other service-connected disabilities. Occasionally, his depression flared up due to seasonal triggers; but the flareup episodes were transitory and not shown to cause unemployability. His corrected vision was normal for his left eye and the visual field was considered “full” for clinical purposes during the appeal period. In sum, the disability picture supported by the evidence does not show that the Veteran’s service-connected disabilities impacted his physical capacity or mental capacity so severely that he became unable to secure or follow substantially gainful employment. Accordingly, the Board finds that criteria for referral for assignment of an extraschedular TDIU prior to April 2, 2019 are not met. See 38 C.F.R. § 4.16(b). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.