Citation Nr: 21014074 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-21 760 DATE: March 11, 2021 ORDER A rating higher than 30 percent for a right eye disability is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s right eye disability has manifested in visual acuity of 5/200 or worse, with a centrally located scotoma. 2. The Veteran’s service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for a right eye disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, DC 6035-6066. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to October 1969. Right eye disability Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected right eye disability (central scotoma with vision loss secondary to trauma) has been assigned a 30 percent rating under DC 6081-6064, for centrally located scotoma causing decreased visual acuity. The Veteran has asserted that a 50 percent rating is warranted for the right eye disability. 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. There were no substantive changes to how scotomas or visual acuity is rated. 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. 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). Under DC 6064, where there is no more than light perception in the poorer eye, and the visual acuity in the other eye is 20/40, a 30 percent rating is warranted. Under DC 6065, where the visual acuity in the poorer eye is 5/200, and the visual acuity in the other eye is 20/40, a 30 percent rating is assigned. Under DC 6081, unilateral scotoma affecting at least one-quarter of the visual field or a centrally located scotoma of any size warrants a minimum 10 percent rating. DC 6081 instructs to evaluate based on visual impairment due to scotoma, if that would result in a higher evaluation. 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. 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). At a July 2014 VA examination, the Veteran reported he had very poor vision at all distances in the right eye. On examination, the Veteran was only able to perceive hand movements or count fingers with the right eye. The examiner noted that the Veteran was not legally blind even with severely limited right eye vision, as his left eye was normal. The pupil was round and reactive, with no afferent pupillary defect. There was no evidence of astigmatism or diplopia. Internal examination found a fibrovascular scar with central hyperpigmentation on the macula, which the examiner opined resulted in severe reduction of best corrected acuity and central scotoma in the right eye. The examiner opined that the visual impairment did not cause the Veteran to be unemployable but did cause limitations in the type of work he could perform. Specifically, the Veteran was found not to be able to work in a profession requiring excellent central vision or depth perception, such as commercial driving, surgery or operating heavy equipment. At a January 2020 VA examination, the Veteran reported decreased vision and that he could not see anything centrally in the right eye. He stated he had a hard time reading road signs until he was very close to them. The Veteran denied eye pain or any other eye symptoms. On examination, visual acuity was 5/200 or worse in the right eye. The Veteran was only able to perceive hand movements or count fingers. The pupil was round and reactive, with no afferent pupillary defect. There was no evidence of astigmatism or diplopia. Internal examination found a fibrovascular scar with central hyperpigmentation on the macula. The examiner noted a visual field defect in the form of a centrally located scotoma on the right eye. The macular scar was found to be the cause of decreased visual acuity and central scotoma. The examiner found that the eye disability impacted the Veteran’s ability to work in a job requiring good binocular vision or depth perception. In a November 2020 VA addendum, the examiner explained that while the Veteran had a macular scar, conducting a VA scar examination was not appropriate as the scar was not a dermatological scar. The examiner further noted that the scar was not visible other than on examination of the retina, was not disfiguring, and did not cause pain. During the appeal period, VA examiners diagnosed other eye conditions, including cataracts, dry eye syndrome and anatomic narrow angles. The examiners all found that these conditions were not visually significant and did not cause the Veteran’s severely decreased acuity and central scotoma. The November 2020 examiner specifically opined that the other eye conditions were not related to the Veteran’s service-connected eye disability. VA medical records during the appeal period are consistent with VA examination reports, indicating a history of macular scar causing decreased vision and central scotoma. Visual acuity was measured as only able to count fingers. After review of the record, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 30 percent is warranted for the Veteran’s right eye disability. The Veteran’s right eye disability manifests in a centrally located scotoma and visual acuity no better than 5/200. DC 6081 allows for a minimum 10 percent rating for centrally located scotoma, or rating based on visual impairment if that results in a higher rating. The Veteran’s right eye vision was no better than 5/200. Combined with left eye acuity of 20/40 (as the left eye is not service connected), a higher 30 percent rating is warranted under DC 6064. 38 C.F.R. § 4.75(d) is clear that the maximum evaluation allowed for visual impairment of one eye is 30 percent, unless there is anatomical loss of the eye. Any additional rating for the eye is only permitted for other disabilities of the same eye not based on visual impairment, such as disfigurement. In the present case, while the Veteran has very poor vision in the right eye due to the service-connected disability, there is no anatomical loss of the eye. Therefore, a rating higher than 30 percent cannot be assigned for the associated visual impairment. Further, no separate rating is warranted as there are no other disabilities of the same eye not based on visual impairment. No examiners found that the disability caused scarring or disfigurement. The November 2020 VA examiner found that that the Veteran’s scar was not visible, disfiguring or painful. Other evidence of record corroborates this, as the Veteran denied pain in the eye multiple times. The Veteran has not asserted that the eye disability causes impairment other than decreased vision. As there is no disability other than visual impairment in the right eye, a rating higher than 30 percent is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 30 percent is warranted for the right eye. Therefore, the claim must be denied. TDIU The Veteran has asserted that his right eye disability precludes gainful employment, as it slows him down and causes safety problems. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more 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 C.F.R. §§ 3.340, 3.341, 4.16(a); Mittleider v. West, 11 Vet. App. 181 (1998). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for a right eye disability, rated as 30 percent disabling. He is also service connected for bilateral hearing and nasal fracture, each rated as noncompensable. The Veteran’s combined evaluation is 30 percent during the appeal period. Thus, he has not met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) at any time during the appeal period. Nevertheless, the Veteran may be entitled to a TDIU if it is established that he is unable to secure or follow substantially gainful employment as a result of the effects of the service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment, or work that is more than marginal, which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233 (2015). The regulation requires that, in cases of Veterans who evidence suggests are unemployable by reason of service-connected disabilities and who fail to meet the threshold percentage requirements of 38 C.F.R. § 4.16(a), the case is to be submitted to VA’s Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board finds that the Veteran is not unemployable, and, thus, referral to the Director is not warranted. The Board notes that VA provided the Veteran with a formal application for TDIU along with a Request for Employment Information, however neither form was returned by the Veteran or his representative. Multiple VA medical records indicate that the Veteran reported being a retired glass factory worker, with some records specifying “shipping/loading trucks.” At a July 2015 VA examination for hearing loss, the Veteran reported that he retired in 2006. The Veteran reported that the hearing loss impacted ordinary conditions of daily life, including his ability to work. Specifically, he reported that he had to pay more attention to what he was doing, and that if there was any background noise “I’m done.” At a December 2016 VA examination for hearing loss, the Veteran reported functional impact in the form of having to ask people to repeat themselves if they were a little far away. At a January 2017 VA examination for his nasal fracture, the examination found no symptomology related to the disability. The examiner found no functional impact on the Veteran’s ability to work due to the condition. A July 2017 VA medical record noted that the Veteran worked for 33 years at a glass factory and had occupational pneumoconiosis secondary to exposure as a glass worker. Regarding the right eye, the July 2014 VA eye examiner explicitly opined that the Veteran’s right eye disability did not cause him to be unemployable. However, the examiner found the disability did cause some limitations. Specifically, the Veteran could not work in professions requiring excellent central vision in both eyes or depth perception, such as performing surgery, commercial driving or operating heavy equipment. The examiner noted, however, that the Veteran could use monocular clues to judge depth to some degree. The January 2020 VA eye examiner opined that the Veteran’s eye disability caused a lack of depth perception, limiting him in task requiring good binocular vision or excellent central vision in both eyes. The Board finds that the Veteran’s service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment. The Veteran has specifically stated that his right eye disability causes him to be unemployable. Both VA eye examiners found that the Veteran could perform some jobs with his disability, though he was limited to tasks requiring excellent central vision in both eyes or depth perception. The January 2020 VA examiner explicitly found the Veteran not to be unemployable due to the disability. VA examinations for the Veteran’s hearing loss and nasal fracture found no impact of those disabilities on the Veteran’s ability to work. The record indicates those disabilities are largely asymptomatic. Thus, even considering all service-disabilities in combination, the record does not indicate that the disabilities preclude all substantially gainful employment. While limited by the eye disability, there is no indication that the Veteran could not work at a job that did not require central vision in both eyes or depth perception. The Board acknowledges the Veteran’s assertions that his service-connected right eye disability prevents him from substantially gainful employment. However, his statements are outweighed by the medical evidence discussed above. In sum, entitlement to TDIU on a schedular basis must be denied, and referral for extraschedular consideration is not warranted. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.