Citation Nr: 21025573 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-26 912 DATE: April 28, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) from June 13, 2010 is granted. REMANDED Whether the reduction in rating from 10 percent to noncompensable for bilateral cataracts, effective September 1, 2012, was proper is remanded. Entitlement to a compensable rating for bilateral cataracts is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his service-connected disabilities rendered him unable to obtain and sustain substantially gainful employment from June 13, 2010. CONCLUSION OF LAW The criteria for TDIU from June 13, 2010 have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Marine Corps from May 1981 to August 1993. He has prior service from approximately 1965 to 1971; however, the DD 214 for this period is not currently of record. The DD 214 for his second period of service shows that the Veteran has earned a number of awards, including the Vietnam Service Medal, Combat Action Ribbon, Bronze Star with V, and several meritorious unit commendations, among others. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). A June 2011 rating decision granted entitlement to service connection for cataracts, with an initial 10 percent rating provided from June 13, 2010. A February 2012 rating decision proposed reduction of cataracts from 10 percent to noncompensable. A June 2012 rating decision reduced the Veteran’s cataracts rating to noncompensable, effective September 1, 2012. The Veteran appealed the propriety of the reduction. A May 2014 Statement of the Case (SOC) addressed the claim as entitlement to an increased rating for cataracts and did not address the Veteran’s appeal of the propriety of the reduction. The Veteran submitted a substantive appeal. These issues were previously before the Board in July 2019, wherein the Board granted entitlement to service connection for tinnitus, found that the reduction in rating for cataracts was proper, and denied entitlement ot a compensable rating for cataracts. The Board remanded the issue of entitlement to service connection for left hearing loss. In October 2020, the Court of Appeals for Veterans Claims (CAVC) signed a Joint Motion for Partial Remand (JMR) vacating the July 2019 Board findings related to the Veteran’s cataracts claims and remanded for readjudication. The JMR noted that the May 2014 SOC was inadequate because it did not address the propriety of the rating reduction. Additionally, the Veteran was provided a VA examination in June 2011, with an addendum provided in June 2011. The Veteran reported worsening symptoms during a May 2019 informal hearing presentation. The JMR found that the 2019 Board decision did not address a private treatment record of worsening vision from March 2012 nor the May 2019 statement, and that an updated VA examination was necessary to determine the current severity of the Veteran’s cataracts. 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 Veteran was granted entitlement to TDIU, effective April 7, 2011, in an April 2013 rating decision. The Veteran currently has an increased rating for cataracts claim on appeal from June 13, 2010. As such, under Rice, the Veteran has a claim of entitlement to TDIU prior to April 7, 2011 on appeal. 1. Entitlement to total disability based on individual unemployability from June 13, 2010 is granted. As noted above, the Veteran filed a formal claim for TDIU on April 7, 2011. On the form, the Veteran reported he last worked in April 2009. He was previously employed in, what appears to note, automotive sales. He has a high school education and denied additional training. He indicated that his PTSD, diabetes, and complications of diabetes rendered him unable to follow substantially gainful employment. On July 13, 2010, the Veteran submitted a statement in support of his claim which included a complaint of blurred vision. An October 2010 VA examination diagnosed bilateral cataracts, which was noted to have been diagnosed in service in July 1985, not associated with diabetes. Although the Veteran’s statement was received July 13, 2010, the Veteran was granted entitlement to service connection effective June 13, 2010 (the stamp for the date on the statement is obstructed, but signed June 26, 2010). Total disability ratings for compensation may be assigned where the Schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16 (b). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident may be considered as one disability. 38 C.F.R. § 4.16(a). Here, the Veteran has a combined schedular rating of 70 percent from April 8, 2010, and a combined schedular rating of 90 percent from July 13, 2010. His disabilities include: posttraumatic stress disorder (50 percent from July 13, 2010), diabetes (40 percent from April 8, 2010), lumbar spine disorder (10 percent from April 8, 2010), tinnitus (10 percent from April 8, 2010), peripheral neuropathy of the upper extremities (10 percent ratings for each from April 8, 2010), peripheral neuropathy of the lower extremities (10 percent ratings for each from April 8, 2010), and noncompensable ratings for bilateral hearing loss, erectile dysfunction, and cataracts. As such, for the period from June 13, 2010 to April 7, 2011, the Veteran met the schedular criteria for entitlement to TDIU. Resolving reasonable doubt in the Veteran’s favor, his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment from June 13, 2010. The Board cannot provide TDIU prior to that date as the claim for TDIU is raised based on Rice, and the increased rating claim is on appeal from an initial rating effective June 13, 2010. REASONS FOR REMAND 1. Whether the reduction in rating from 10 percent to noncompensable for bilateral cataracts, effective September 1, 2012, was proper is remanded. As noted in the introduction, an October 2020 JMR included that the May 2014 SOC was inadequate because it did not address the propriety of the remand of the Veteran’s cataracts rating. On remand, an adequate SOC must be provided. 2. Entitlement to a compensable rating for bilateral cataracts is remanded. The Veteran was last afforded a VA eye examination in June 2011. The Veteran has since reported that his vision has worsened. Additionally, the criteria for rating eye disabilities was revised effective May 2018. As such, on remand the Veteran must be afforded an updated examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an updated VA eye examination to determine the current severity of his bilateral cataracts. (Continued on the next page)   2. Provide a SOC which addresses the propriety of the reduction of the Veteran’s cataracts from 10 percent to noncompensable, effective September 1, 2012. 3. After completing the development requested above, readjudicate the Veteran’s claim for a compensable rating for cataracts. 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.