Citation Nr: 21012289 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 06-22 924 DATE: March 4, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for left eye retinal detachment with scleral buckle prior to February 25, 2008, is remanded. Entitlement to a rating in excess of 30 percent for left eye retinal detachment with scleral buckle, from February 25, 2008, to November 30, 2013, is remanded. Entitlement to a rating in excess of 20 percent, to include the propriety of the reduction, for left eye retinal detachment with scleral buckle, from December 1, 2013, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1999 to December 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).   The May 2004 rating decision granted entitlement to service connection for left eye retinal detachment status post scleral buckle surgery with an initial 10 percent rating effective December 28, 2003. An April 2006 rating decision provided an increased 20 percent rating, effective December 28, 2003. A September 2013 rating decision reduced the Veteran’s left eye disability rating from 30 percent to 20 percent, effective December 1, 2013. This case was previously before the Board in July 2010 and remanded for a requested Board hearing. This case was again before the Board in February 2011 and October 2012 and both times remanded for a VA examination and further development. In June 2013, the Board remanded this case to get clarification for a March 2013 rating decision that increased the rating of the left eye disability from 20 percent to 30 percent, effective February 25, 2008. In March 2016, the claim was again remanded for a Board hearing. The Veteran has been afforded two Board hearing in conjunction with his left eye rating claim. Initially, he provided testimony at a December 2010 Board hearing. However, the Veterans Law Judge who presided over the hearing retired, and the Veteran requested another Board hearing. He provided testimony before the undersigned Veterans Law Judge in February 2017. Transcripts of both hearings are contained in the electronic record. 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. Here, the neither the Veteran nor his representative have expressly raised entitlement to TDIU. During the Veteran’s 2017 Board hearing, he testified regarding the impact of his left eye disability on his employment, wherein he reported spending “8 hours a day” at a computer. As there is no indication that this employment is marginal, the Board finds that entitlement to TDIU has not been reasonably raised by the record. REFERRED The issue of entitlement to service connection for headaches secondary to his service-connected left eye disability was raised during the December 2010 Board hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 1. Entitlement to an initial rating in excess of 20 percent for left eye retinal detachment with scleral buckle prior to February 25, 2008, is remanded. 2. Entitlement to a rating in excess of 30 percent for left eye retinal detachment with scleral buckle, from February 25, 2008, to November 30, 2013, is remanded. 3. Entitlement to a rating in excess of 20 percent, to include the propriety of the reduction, for left eye retinal detachment with scleral buckle from December 1, 2013, is remanded. During the pendency of the appeal, the regulations for rating eye and vision disabilities were amended twice. Initially, the regulations related to the eye were amended for claims received on or after December 10, 2008. 73 Fed. Reg. 66543-66544 (Nov. 10, 2008). However, the amendments are only effective for claims filed on or after December 10, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran has not requested such consideration. As his claim was received in December 2003, the older criteria apply here, rather than the revised criteria, until the May 13, 2018 amendments. See 73 Fed. Reg. 66,543 -66,554 (November 10, 2008). 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, with the final rule going into effect May 13, 2018. 89 Fed. Reg. 15316 (Apr. 10, 2018). These changes were not limited to claims filed on certain dates. Instead, the Board will consider the claim in light of both the former (here, 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. Pursuant to the rating criteria in effect prior to December 10, 2008, the Veteran’s disability was initially rated 10 percent under DC 6011 for retina, localized scars, atrophy, or irregularities of, centrally located, with irregular, duplicated enlarged or diminished image. A 10 percent rating is the highest rating available under DC 6011. His increased 20 percent rating was based on visual acuity under DC 6077. Prior to December 10, 2008, chronic diseases of the eye listed at Diagnostic Codes 6000 through 6009 were rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. A minimum rating of 10 percent was to be assigned during active pathology. 38 C.F.R. § 4.84a, DCs 6000-6009. A 20 percent rating is warranted for impairment of central visual acuity when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/40; or when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, DCs 6077, 6078 (in effect prior to December 10, 2008). A 30 percent rating is warranted for impairment of central visual acuity when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; or when there is blindness in one eye, having only light perception and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, DCs 6070, 6074, 6076, 6077, 6078 (in effect prior to December 10, 2008). In July 2017, the Board remanded the staged rating claims to obtain missing treatment records, and to afford the Veteran an updated VA examination. The Veteran participated in a VA eye examination in August 2017 wherein he was diagnosed with a right retinal detachment, right lattice degeneration, and bilateral dry eye syndrome. The examiner found that his best corrected distance vision was 20/200. He was noted to have a left pupillary defect, a fibrotic scar of the left macula, right lattice holes and left retinal detachment with scleral buckle. The examiner did not complete the section related to visual field impairment. Under the section for scarring and disfigurement, the examiner found that the Veteran had one characteristic of disfigurement—a scar at least ¼ inch (0.6 cm) wide at the widest part. There was a notation to see the photos of the Veteran’s “retinal fibrosis in left macula.” The record contains copies of photos of, what appears to be, the anterior section of the Veteran’s left eye. The examiner found that the Veteran had not had any incapacitating episodes in the prior 12 months. Under the 2018 revised criteria, DC 6008 (for detachment of retina) instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye which directs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. The Board notes that the 2017 examination did not include the updated definition of an incapacitating episode from the 2018 ratings revision. In February 2018, the RO attempted to schedule the Veteran for another VA examination. The Veteran canceled the examination because he was out of state. In March 2018, the Veteran wrote requesting that his examination be rescheduled when he returned to Florida, where he would reside from April to August. It does not appear that the examination was rescheduled. As the Veteran supplied “good cause” for why he was unable to attend the schedule examination, the examination should have been rescheduled. See 38 C.F.R. § 3.655. A March 2019 addendum to the 2017 examination noted that visual field testing was not completed as the Veteran’s central visual acuity of 20/200 “would not allow for reliable testing.” A review of ongoing VA treatment records shows that the Veteran has been listed as having corrected distance vision in his left eye as 20/400 frequently over the years. See e.g. June 8, 2020, June 17, 2019, May 25, 2017, May 23, 2013, May 30, 2012, February 25, 2008 VA treatment records. He has also been noted to have corrected left distance vision of “finger counting at 6 feet.” As the 2017 VA examination indicated that the Veteran’s best corrected distance vision was 20/200, and subsequent VA treatment records have indicated his left vision is 20/400 or finger counting at 6 feet, and updated examination is necessary. Additionally, a June 9, 2020 VA treatment record noted that the Veteran’s “scleral buckle is visible through the conjunctiva.” As the 2017 examiner had also selected that the Veteran had one characteristic of disfigurement (a scar ¼ inch wide) referring to a fibrotic macular scar, the examination provided on remand should address whether the Veteran’s left eye has a characteristic of disfigurement that is visible without looking at the anterior section of the eye (is visible to “plain sight”). Lastly, during his 2017 hearing, the Veteran testified that he felt he had right eye strain due to having to rely on his right eye for vision due to his service-connected left eye disability. On remand, the examiner should address whether the Veteran’s right eye has a disability or visual impairment due to his service-connected left eye disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an updated VA eye examination. Following a review of the record and interview and examination of the Veteran, the examiner should list the eye disabilities in both eyes, and for each non-service-connected disorder, address the following: (a.) For each listed non-service-connected disability, is it at least as likely as not (50/50 probability or greater) due to his service-connected left eye disability? (b.) Specifically address whether the Veteran have right visual impairment or decreased visual acuity that is at least as likely as not (50/50 probability or greater) due to his service-connected left eye disability? The examiner should address the Veteran’s contention that he has right eye strain from relying on his right eye for most of his vision. (c.) Specifically address whether the Veteran has a visible scar or visible scleral buckle that meets one of the characteristics of disfigurement when his left eye is viewed with “plain sight” (not when viewed through imaging/not part of the anterior eye)? The examiner should refer to the 2017 eye examination and the June 9, 2020 VA treatment record notation that the scleral buckle was visible through the conjunctiva. (d.) The examiner should note the VA treatment records which list the Veteran’s corrected left distance vision as 20/400 or finger counting at 6 feet. (e.) If possible, visual field testing should be completed. If it cannot be completed, the examiner should explain in detail why it cannot be completed. If it cannot be completed, describe what it means visually for the Veteran including specifics of any deficiencies found. A complete explanation/rationale must accompany any opinion expressed. 2. After completing the development requested above, readjudicate the Veteran’s claim. The RO must address the claim based on both a) the rating criteria prior to the December 10, 2008 amendments, and b) with the May 13, 2018 amendments. 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. MARJORIE A. AUER 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.