Citation Nr: 21011962 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 12-27 591 DATE: March 3, 2021 REMANDED Entitlement to a rating in excess of 30 percent for right eye injury with residuals of cataract is remanded. Entitlement to a compensable rating for right eye injury with residuals of glaucoma is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1969 to November 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a claim of entitlement to service connection for right eye injury on April 17, 2006. The claim was initially denied, and the Veteran appealed the service connection claim to the Board. The Board remanded the claim for development, and an August 2012 rating decision granted entitlement to service connection for right eye injury residuals, with a noncompensable rating. The Veteran appealed the noncompensable rating. A June 2020 rating decision granted an increased 30 percent rating for right eye injury residual of cataracts, and a separate noncompensable rating for right eye injury residual of glaucoma. The Veteran’s increased eye rating claim was previously before the Board in January 2016, January 2019, and October 2020. In January 2016, the Board remanded the claim for the RO to issue a Statement of the Case. In January 2019, the Board remanded the claim to direct the RO to give the Veteran the information regarding the eye rating criteria prior to December 10, 2008 and to ask if he wanted VA to consider his case under the 2008 regulations change. The RO was also supposed to provide a supplemental SOC (SSOC) which addressed the Veteran’s claims under the correct rating criteria. In October 2020, the Board remanded the claims again because the 2019 directives were not accomplished. Unfortunately, the Board has determined that addition remand is required. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Board notes that the Veteran has not expressly raised a claim of entitlement to TDIU. Additionally, the treatment records indicate that the Veteran retired after 30 years of employment with the U.S. Postal Service. As such, the Board does not find that a claim of TDIU has been reasonably raised by the record. 1. Entitlement to a rating in excess of 30% for right eye injury with residuals of cataract is remanded. 2. Entitlement to a compensable rating for right eye injury with residuals of glaucoma is remanded. Initially, the Board notes that the Veteran’s claim has been pending since April 2006. During the pendency of the appeal, the criteria for rating eye disabilities was amended twice, with new regulations becoming effective on December 10, 2008 and May 13, 2018. Regarding the 2008 changes, 73 Fed. Reg. 66543-66544 noted that the “applicability date” of the amendments was that “these amendments shall apply to all applications for benefits received by VA on or after December 10, 2008.” As the Veteran’s claim was received in 2006, the 2008 revisions were not applicable to the Veteran’s claim. The final rule revising the eye disability rating criteria is contained at 89 Fed. Reg. 15316 (April 10, 2018), and went into effect May 13, 2018. This revision did not have an “applicability date.” As such, the Board will consider the claim in light of both the former (pre-2008) and revised (2018) schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Prior Board remands requested that the RO contact the Veteran to determine if he wished for his claim to be considered under the 2008 amendments. The Veteran did not reply to the requests. The Veteran is currently service-connected for his right eye only. 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. § 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). As such, currently the Veteran is in receipt of a maximum rating for visual impairment of one eye. The Veteran’s 30 percent rating for residuals of a right eye injury with cataracts is based on the combination of 10 percent rating for visual acuity and 20 percent rating for contraction of visual fields. VA and private treatment records include the Veteran’s continued complaints of blurry right eye vision. Prior to March 28, 2016, the Veteran’s right eye visual acuity was 20/40 or better, warranting a noncompensable rating for distance visual acuity. However, the RO has applied the 10 percent rating for visual acuity for the entire period on appeal. The Board notes that the September 16, 2010 VA eye examination showed scattered hard drusen in the Veteran’s right and left macula. He also had bilateral posterior vitreal detachment. An October 29, 2010 VA eye consultation noted that the Veteran had bilateral cataracts and bilateral dry eye syndrome. He also had a sphincter tear with asymmetric intraocular pressure (pressures within normal range and healthy optic nerve appearance) of the right eye. A February 23, 2012 VA examination included the Veteran’s report of “constantly blurred” vision. On slit lamp evaluation, he had mildly attenuated vessels of both eyes, scattered drusen of the macula (right worse than left), and scattered inferior nasal pigmented CR scarring right eye greater than inferior temporal CR scar left eye. The impression was of rule out post-traumatic maculopathy right eye with OCT MAC with thinning/atrophy of retina in fovea and enlargement of foveal depression right eye. It was noted that his chronically decreased right eye visual acuity was due to the concussive trauma in service. It was noted that the “post-traumatic CR [chorioretinal] scarring of both eyes in symmetric coup and countercoup regions of both eyes is most likely caused by or a result of trauma as a result of the concussive traumat sustained” in service. Humphrey Visual Fields (HVF) tests included a January 14, 2012 finding that the Veteran’s right eye “inferior step from last field not repeatable, mild cluster of 3 defects along edge, borderline.” His left eye showed a few scattered defects, essentially normal. He was assessed with glaucoma suspect. HVF thereafter were “essentially clear.” The 2010 and 2012 examinations did not include visual field defect findings. The October 2019 VA examination showed contraction of visual fields of both eyes. The 2019 examiner did not address whether the Veteran’s contraction of visual fields was due to his cataracts, glaucoma, or another condition. The examiner also did not address whether the Veteran’s bilateral contraction of visual field was due to his in-service injury. The RO applied the contraction of visual field to the Veteran’s right eye cataracts; again, the rating decision did not address that the Veteran had bilateral contraction of visual fields. On remand, the Veteran should be afforded another VA examination and the examiner must address whether the Veteran’s other eye disabilities are due to his service or service-connected right eye injury, to include addressing the Veteran’s left eye visual field contraction. Although the Veteran is currently in receipt of the highest schedular rating for visual impairment of a single service-connected eye, increased ratings are available if an examiner determines that his left eye should also be service-connected. The matters are REMANDED for the following action: 1. Schedule the Veteran for an updated VA eye examination. After a review of the record, and interview and examination of the Veteran, the examiner must provide the following: (a.) For each diagnosed eye condition, the examiner should provide an opinion as to whether it is at least as likely as not (50/50 probability or greater) the eye condition is due to the Veteran’s service? (b.) Is it at least as likely as not (50/50 probability or greater) the Veteran’s right eye contraction of visual field is due to his right eye injury? The examiner should address if his right eye contraction of visual field is due to his cataracts, glaucoma suspect, macular drusen, etc. (c.) Is it at least as likely as not (50/50 probability or greater) the Veteran’s left eye contraction of visual field is due to his military service or a service-connected disability? (d.) Does the Veteran have bilateral chorioretinal scarring as a result of his in-service right eye/head injury? The examiner should refer to the February 23, 2012 examination. The examiner should review the Humphrey Visual Fields during the pendency of the appeal (from 2006 to the present). The examiner must provide an explanation/rationale for each opinion expressed. 2. After completing the development requested above, readjudicate the Veteran’s claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, 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.