Citation Nr: 21011077 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 10-31 843 DATE: February 26, 2021 ORDER Entitlement to an evaluation of 60 percent, but no higher, from January 31, 2008 to December 10, 2008 for chronic bilateral simple glaucoma is granted. Entitlement to an evaluation in excess of 70 percent from December 10, 2008 to October 7, 2011 for chronic bilateral simple glaucoma is denied Entitlement to an evaluation of 90 percent, but no higher, from October 7, 2011 for chronic bilateral simple glaucoma is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) from May 1, 2010, but no earlier, is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s right eye had no light perception or at most 5/200 in corrected visual acuity for distance and the visual field in the right eye was less than 5 degrees. 2. From January 31, 2008 to December 10, 2008, the Veteran’s left eye had 20/30 at worst in corrected visual acuity for distance. 3. From December 10, 2008 to October 7, 2011, the left eye had 20/50 at worst in corrected visual acuity for distance. 4. From October 7, 2011, the left eye had 20/200 at worst in corrected visual acuity for distance. 5. From January 31, 2008 to December 10, 2008, the left eye had remaining visual field of 54 degrees at worst. 6. From December 10, 2008 to September 27, 2014, the left eye had remaining visual field of 32 degrees at worst. 7. From September 27, 2014, the left eye had remaining visual field of 7 degrees at worst. 8. The evidence is equipoise as to whether the Veteran’s service-connected bilateral glaucoma renders him unable to secure or follow a substantially gainful occupation consistent with his education, training, and work experience since May 1, 2010, but no earlier. CONCLUSIONS OF LAW 1. The criteria for a rating of 60 percent, but no higher, from January 31, 2008 to December 10, 2008 for chronic bilateral simple glaucoma have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6013, 6065, 6080. 2. The criteria for an evaluation in excess of 70 percent from December 10, 2008 to October 7, 2011 for chronic bilateral simple glaucoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6013, 6065, 6080. 3. The criteria for a rating of 90 percent, but no higher, from October 7, 2011 for chronic bilateral simple glaucoma have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6013, 6065, 6080. 4. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to TDIU since May 1, 2010, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to June 1972. The Board previously remanded the issue for further development in March 2014, September 2017, and November 2018. The case has now been returned to the Board for appellate review. 1. Increased rating for chronic bilateral simple glaucoma 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. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 evaluations 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. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed a claim for increased evaluation for his bilateral glaucoma on January 31, 2008. Thus, the Board considers the evidence of record one year prior to the claim date. His service-connected glaucoma is currently evaluated under Diagnostic Code 6013-6064. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. During the appeal period, VA revised schedule of ratings for eye disability twice in December 2008 and May 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. Before December 10, 2008, Diagnostic Code 6013 for glaucoma, simple, primary, noncongestive directed the rater to rate on impairment of visual acuity or visual field loss with minimum rating of 10 percent. Both the December 2008 and May 2018 criteria indicate that a minimum 10 percent rating was warranted if continuous medication was required. Under the December 2008 criteria, 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 December 2008 and 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 Formula 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, the evidence shows that the Veteran has never had any incapacitating episode due to his service-connected eye disability as defined in the regulation for the entire appeal period. Therefore, the Board considers whether the Veteran’s bilateral glaucoma warrants a higher evaluation based on visual impairment. 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. Here, for the entire appeal period, the Veteran’s service-connected eye disability did not result in impairment of muscle function. Thus, the Board considers the level of severity for impairment visual acuity and impairment of 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. For the entire appeal period, the Veteran’s corrected visual acuity for distance has remained 5/200 or worse with no light perception. Thus, Diagnostic Code 6064 and Diagnostic Code 6065 are considered to evaluate impairment of visual acuity due to glaucoma. Diagnostic Code 6064 provides ratings where there is no more than light perception in one eye (the poorer eye). A 30 percent rating is warranted where visual acuity in the other eye is 20/40. A 40 percent rating is warranted where visual acuity in the other eye is 20/50. A 50 percent rating is warranted where visual acuity in the other eye is 20/70. A 60 percent rating is warranted where visual acuity in the other eye is 20/100. A 70 percent rating is warranted where visual acuity in the other eye is 20/200. An 80 percent rating is warranted where visual acuity in the other eye is 15/200. A 90 percent rating is warranted where visual acuity in the other eye is 10/200. A 100 percent rating is warranted where visual acuity in the other eye is 5/200. Diagnostic Code 6065 provides ratings where vision in one eye (the poorer eye) is 5/200. A 30 percent rating is warranted where vision in the other eye is 20/40. A 40 percent rating is warranted where vision in the other eye is 20/50. A 50 percent rating is warranted where vision in the other eye is 20/70. A 60 percent rating is warranted where vision in the other eye is 20/100. A 70 percent rating is warranted where vision in the other eye is 20/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 90 percent rating is warranted where vision in the other eye is 10/200. A 100 percent rating is warranted where vision in the other eye is also 5/200. A March 2008 VA examination shows corrected visual acuity for distance in the left eye was 20/15. A November 2008 VA treatment record shows it was 20/30-2. A January 2009 VA treatment record shows it was 20/40+2. A March 2009 VA examination shows it was 20/50+. An October 2011 private treatment record shows that it was 20/200. A July 2014 VA treatment record showed it was 20/150. A September 2014 VA examination showed it was 20/200. Thus, although the result in the October 2011 private treatment records were not conducted in an examination setting, with resolution of reasonable doubt in the Veteran’s favor, the Veteran’s impairment of visual acuity warrants an evaluation of 30 percent at most from January 31, 2008, 40 percent at most from March 4, 2009, and 70 percent at most from October 7, 2011 under Diagnostic Code 6065. Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.77. Diagnostic Code 6080 provides for concentric contraction of visual field. 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. For the entire appeal period, the Veteran’s visual field in the right eye is limited to light perception, or remaining field of 5 degrees or less. As for the left eye, the evidence shows that the Veteran’s condition has gotten worse over the appeal period. An April 2008 visual field test, conducted in addendum to the March 2008 VA examination, reflects a finding of remaining visual field in the left eye of 54 degrees. A March 2009 VA examination noted significant visual field loss in the left eye and reflects a finding of remaining visual field of 32 degrees. In a January 2011 statement, the Veteran reported that he had lost a great portion of his left eye and his upper and lower side vies in that eye were gone. A September 2014 VA examination reflects a finding of loss of temporal half, nasal half, superior half in the left eye. A Goldmann visual field test was ordered at the examination. A July 2015 addendum opinion, addressing the result of the visual field test, stated that small visual field remained in the left eye with a diagnosis of endstage glaucoma in the left eye with visual field loss. Further, a September 2019 addendum opinion states the Veteran “must have a very small central island of 7 to 10 degrees due to severe glaucoma.” Thus, the evidence shows that the Veteran’s remaining visual field in the left eye was 54 degrees at worst in March 2008 from January 21, 2008, 32 degrees from March 4, 2009, and 7 degrees at worst since September 2014. Under Diagnostic Code 6080, this corresponds to a 40 percent rating, 50 percent rating, and 70 percent rating respectively at the severity of the Veteran’s right eye. Combining the results from the impairment of visual acuity, the Board finds that a combined evaluation of 60 percent (30 percent combined with 40 percent) from January 31, 2008, 70 percent (40 percent combined with 50 percent) from December 10, 2008, and 90 percent from October 7, 2011 (70 percent combined with 50 percent from October 7, 2011 to September 27, 2014 and 70 percent combined with 70 percent from September 27, 2014). 38 C.F.R. §§ 4.25, 4.77(c). The Board notes that results of visual field loss are less complete than those of visual acuity in the Veteran’s claims file, and as a result, the evidence of record does not entirely capture the progression of the Veteran’s visual field loss in the left eye between March 2009 and September 2014. However, as reflected in the final combined ratings assigned above, the Veteran’s bilateral eye disability warrants a combined rating of 90 percent since October 7, 2011. The Board notes that this is consistent with the Veteran’s statement earlier in January 2011, where he reported subjective, significant decline of visual field in the left eye. 2. TDIU Prior to February 6, 2013 VA will grant TDIU when the evidence shows that a veteran is precluded from obtaining or maintaining any 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. A total rating for compensation purposes 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Neither the veteran’s nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. 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). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The medical evidence addressing the functional effects of a veteran’s disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). When adjudicating entitlement to TDIU, VA is expected to give full consideration to the effect of combinations of disability. Geib v. Shinseki, 733 F.3d 1350, 1353-544 (Fed. Cir. 2013) (quoting 38 C.F.R. § 4.15 ). The Veteran has been in receipt of TDIU since February 6, 2013. Therefore, it remains for the Board to consider whether he is entitled to TDIU prior to that date. Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran has met the schedular criteria for consideration of TDIU since January 31, 2008, as his only service-connected eye disability is now rated at a 60 percent from that date. In an April 1982 statement, the Veteran reported that he had diploma in mechanical drafting, but “no one is hiring in the field.” The reported work history since then does not reflect that he utilized the skill of drafting in a direct way. Indeed, a Social Security Administration (SSA) work history report indicates that he worked in various jobs in construction, infrastructure maintenance, plumbing, land scaping, and bus driving from 1985 to 2000. The Veteran submitted a letter, dated February 2009, from a former employer, which stated that the company had employed the Veteran from June 2008 until August 2008. It further stated that the company had to release the Veteran “when his vision became suspect.” He worked as a heavy equipment operator and the employer stated, “it was obvious that he had problems with his vision; at ceratin angles, he could not see his co-workers and his surroundings.” Due to safety issues and the nature of the work, the Veteran was let go from the employment. A March 2010 VA treatment record indicates that the Veteran reported being a not computer user, though he would like to learn how to use it in the future. An August 2014 Veteran’s VA Form 21-8940 indicates that the Veteran last worked full time in April 2010 as a driver for a funeral home since 2004 for 40 hours per week. An April 2015 Request for Employment Information from the funeral home indicates that the Veteran worked for 20 hours per week until February 2013. It also indicated that he had earned $5,000 during a 12-mont period preceding the last date of employment. He worked for the company since January 1998. His employment was terminated due to inability to see. Based on the evidence of record, the Board finds that the Veteran’s bilateral glaucoma prevented him from securing and maintaining gainful employment since May 2010, when he stopped working as a driver full time. The evidence shows that he continued to work part time in the same job, but this job is considered marginal employment. This date is consistent with the medical evidence of record. A July 2010 VA treatment record indicates that the clinician recommended the Veteran not to drive any more due to his eye disability. Given this evidence, and resolving doubt in favor of the Veteran, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected bilateral glaucoma since May 1, 2010, but no earlier, as he was employed. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to TDIU since May 1, 2010, but no earlier, is therefore granted. MICHAEL D. LYON 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.