Citation Nr: 21028960 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-08 369 DATE: May 12, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for enucleation of the right eye with secondary glaucoma; and left eye dry eye syndrome, cataracts, and open angle glaucoma from May 12, 2010 to March 20, 2019 is denied. Entitlement to a disability rating in excess of 100 percent for enucleation of the right eye with secondary glaucoma; and left eye dry eye syndrome, cataracts, and open angle glaucoma from March 21, 2019. Entitlement to total disability rating based on individual unemployability (TDIU) prior to March 20, 2019; is denied. Entitlement to TDIU from March 21, 2019; is denied. FINDINGS OF FACT 1. From May 12, 2010 to March 20, 2019; the Veteran has anatomical loss of his right eye and wears a prosthesis; at no time under consideration has the corrected visual acuity in the Veteran's (remaining) left eye been worse than 20/40. 2. From March 21, 2019; the Veteran has anatomical loss of his right eye and wears a prosthesis; at no time under consideration has the corrected visual acuity in the Veteran's (remaining) left eye been worse than 20/200. 3. The Veteran's single service-connected disability did not preclude him from securing or following a substantially gainful occupation prior to March 21, 2019. 4. The Veteran's single service-connected disability did not preclude him from securing or following a substantially gainful occupation from March 21, 2019. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 40 percent for enucleation of the right eye with secondary glaucoma of the left eye from May 12, 2010 to March 20, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6013, Diagnostic Code 6063. 2. The criteria for a disability rating in excess of 100 percent for anatomical loss of the right eye is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6013, Diagnostic Code 6063. 3. The criteria for to TDIU prior to March 20, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 4. The criteria for entitlement to TDIU from March 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 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 in the United States Army from August 1972 until his honorable discharge in June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Montgomery, Alabama Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board notes that the Veteran was scheduled for a video conference hearing on March 22, 2018. However, the Veteran failed to appear at the hearing and the Board issued a decision in June 2018. In June 2018, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain any updated VA treatment records, schedule a VA eye examination, and readjudicate the issue of entitlement to TDIU. As a preliminary matter, subsequent to the June 2018 Board remand, the RO granted the Veteran's claim for an increased disability rating to 100 percent disabled for enucleation, right eye with secondary glaucoma and left eye dry eye syndrome, cataracts, and open angle glaucoma. However, as will be addressed in greater detail below, the RO made a clear and unmistakable error in the April 2020 rating decision granting a 100 percent disability rating and the Veteran is advised that the RO may subsequently correct this error. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 1. Entitlement to a disability rating in excess of 40 percent for enucleation of the right eye with secondary glaucoma of the left eye from May 12, 2010 to March 20, 2019 The Veteran asserts that he is entitled to a higher disability rating. Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. §§ 4.76(a), 4.79. The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found. 38 C.F.R. § 4.76(b). Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Id. Unless medically contraindicated, the fundus must be examined with the Veteran's pupils dilated. Id. Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009. Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted. The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code). The Veteran is currently assigned a 40 percent disability rating under Diagnostic Code 6013-6066 for impairment of visual acuity due to open-angle glaucoma. However, the Board notes that during the entire period on appeal, the Veteran has been diagnosed with enucleation of the right eye, which is specifically considered under Diagnostic Code 6063. Therefore, the Board finds that a rating under Diagnostic Code 6013-6066 is not the appropriate Diagnostic Code to rate the Veteran's disability. The evidence does show that the Veteran does have anatomical loss of his right eye. As such, the Board finds that a rating under Diagnostic Code 6013-6063 for anatomical loss of one eye is the more appropriate Diagnostic Code. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 6013-6063. The Board further notes that the Veteran's current disability has been rated under Diagnostic Code 6013-6066 for nearly 40 years and is afforded protection under 38 U.S.C. § 1195; 38 C.F.R. § 3.95. However, the Board finds that a change in the Diagnostic Code will not result in a reduction of the current disability rating or severance of service connection. Therefore, the Board finds that a change in the Diagnostic Code does not violate the Veteran's rights under 38 U.S.C. § 1159. The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75(d). Combine the evaluation for visual impairment of one eye with evaluation for other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under diagnostic code 7800). Id. Subject to the provisions of 38 C.F.R. § 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). 38 C.F.R. § 3.383(a) provides that compensation is payable for the combination of service-connected and nonservice-connected disabilities when the impairment of vision in each eye is rated at a (corrected distance) visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less. When the Veteran has anatomical loss of one eye and is unable to wear a prosthesis, increase the evaluation for visual acuity under diagnostic code 6063 by 10 percent, but the maximum evaluation for visual impairment of both eyes must not exceed 100 percent. A 10-percent increase under the paragraph precludes an evaluation under diagnostic code 7800 based on gross distortion or asymmetry of the eye but not an evaluation under diagnostic code 7800 based on other characteristics of disfigurement. Examinations of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen's test type or its equivalent. 38 C.F.R. § 4.76(a). Evaluation of central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76(b). However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. Id. Effective December 10, 2008, Code 6063 provides the following criteria for the anatomical loss of one eye based upon the visual acuity of the other (remaining) eye. A 40 percent disability rating is warranted when visual acuity in the remaining eye is correctable to 20/40. A 50 percent disability rating is warranted when visual acuity in the remaining eye is correctable to 20/50. A 60 percent disability rating is warranted when visual acuity in the remaining eye is correctable to 20/70 or 20/100. A 70 percent disability rating is warranted when visual acuity in the remaining eye is correctable to 20/200. An 80 percent disability rating is warranted when visual acuity in the remaining eye is correctable to 15/200. A 90 percent disability rating is warranted when visual acuity in the remaining eye is correctable to 10/200. A 100 percent disability rating is warranted when visual acuity in the remaining eye is correctable to 5/200. 38 C.F.R. § 4.79, Diagnostic Code 6063. Diagnostic Code 6013 that the Veteran's disability is to be evaluated under the General Rating Formula for Diseases of the Eye with a minimum evaluation of 10 percent if continuous medication is required. The Veteran was scheduled for a VA examination in June 2011. However, the Veteran failed to appear for the scheduled June 2011 VA examination and therefore never underwent a VA examination during the period on appeal. The duty to assist is a two-way street and the Veteran cannot passively wait for assistance in those circumstances where he may or should have information essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Because the Veteran failed to report to the June 2011 VA examination and did not undergo a VA examination until March 21, 2019, there was no increase in disability shown. Additionally, as will be noted later in this decision, the March 21, 2019 VA examination showing an increase in the Veteran's disability has clear and unmistakable errors. The Veteran's VA treatment records reflects that the Veteran's left eye corrected distance visual acuity with glasses was 20/20. See Tuskegee VAMC Treatment Records dated August 10, 2010; see also Tuskegee VAMC Treatment Records dated January 8, 2010. The Board notes that there are no additional VA treatment records within 12 months of the Veteran's date of application for an increased disability rating. Furthermore, the Veteran's private treatment records do not reflect an increase to the Veteran's disability. Based on the evidence above, a disability rating in excess of 40 percent for the Veteran's loss of visual acuity and visual field is not warranted. The Veteran's anatomical loss of the right eye with a visual acuity of 20/20 corrected distance of the left eye warrants a 40 percent disability rating Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 40 percent for a loss of visual acuity. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From March 21, 2019 The Board notes that the April 2020 rating decision assigned a 100 percent disability rating based on anatomical loss of left eye with a corrected distance visual acuity of 5/200 of the right eye. As will be addressed in detail below, this decision contains a clear and unmistakable errors. A March 21, 2020 VA examination reveals that the Veteran had the following visual impairments. 03.21.2019 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 5/200 or worse 5/200 or worse 5/200 or worse 5/200 or worse LEFT 20/40 20/200 20/20 or better 20/70 The Board notes that the March 2020 VA examination indicates that the Veteran's corrected distance and corrected near vision are both far worse than the uncorrected distance and uncorrected near vision, indicating that the Veteran's VA examiner may have reversed those results. However, since it will not impact the present decision, the Board will not remand the case for a new VA examination. Furthermore, the Board notes that the September 2005 VA examination reflected a corrected visual acuity of the left eye of 20/20 for both near and far (nearly identical to the reported uncorrected results from the March 2020 VA examination). See September 2005 VA examination, p. 2. The March 2019 VA examination also revealed that the Veteran has a documented visual field defect. Normal Right Left Up 45 Prothesis Normal Up Temporally 55 Prothesis Normal Temporally 85 Prothesis Normal Down Temporally 85 Prothesis Normal Down 65 Prothesis Normal Down Nasally 50 Prothesis Normal Nasally 60 Prothesis Normal Up Nasally 55 Prothesis Normal The Veteran's average concentric contraction of the visual field of each eye results in a right eye contraction of zero degrees and left eye contraction of 62.5 degrees (no impairment). Based on the evidence above (the listed corrected distance visual acuity), a disability rating of no higher than 70 percent for the Veteran's loss of visual acuity and visual field is appropriate. As noted above, a clear and unmistakable error has been made by the RO. Specifically, the RO mistakenly evaluated the Veteran's disability as an anatomical loss of the left eye rather than the anatomical loss of the right eye and evaluated the right eye corrected distance visual acuity as 5/200. See April 2020 Rating Decision, pp. 2-3. However, as noted above, there also appears to be an error in the reporting of the Veteran's visual acuity of his left eye within the current VA examination because it appears that the examiner reversed the corrected and uncorrected results. Therefore, the RO may find that a new VA examination would be warranted for an accurate evaluation of his impairment(s). The Veteran's anatomical loss of the right eye with visual acuity of no worse than 20/200 corrected distance of the remaining (left) eye warrants a disability rating of no higher than 70 percent. However, if the corrected and uncorrected results were reversed as it appears likely, the results would be that the Veteran's visual acuity warrants no more than 40 percent disability rating. The Veteran is advised that the RO can and likely will correct this error, probably with a required additional VA examination. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 100 percent for a loss of visual acuity and impairment of visual field. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to TDIU prior to March 20, 2019 VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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, 529 (1993). The Court recently defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; the economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, include ing limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). From May 12, 2010 to March 21, 2019 Service connection is only in effect for the Veteran's bilateral eye disability, rated at 40 percent disabling. For the time period on appeal, the Veteran's combined disability evaluation is 40 percent. Thus, the percentage requirements for a TDIU are not met because the Veteran has one service-connected disability that is not rated at least 60 percent disabling. 38 C.F.R. § 4.16(a). During the period on appeal, the Veteran has stated that he is unable to obtain or maintain substantially gainful employment due to only his service-connected visual impairment(s). However, the Board notes that the Veteran's most recent employer, which his employment ended in April 2009, reported that the Veteran's employment was terminated (laid off) due to a lack of work and did not report that the Veteran lost any hours within the prior 12 months preceding his last day of employment due to his service-connected disability. Furthermore, in the February 2011 Statement in Support of Claim (VA Form 21-4138), the Veteran reported that he is not able to work anymore because he cannot stand long before his legs [give] out, he is in pain and his medications help a little but he needs help with his nerve in his lower back and that he hurts like a 70 year old. See February 2011 Statement in Support of Claim (VA Form 21-4138). Finally, within his application The Veteran also suffers from several non-service-connected conditions, including the following: hypertension, gout, fatigue, dizziness, muscle pain, and bad back (severe multilevel degenerative disc disease). The Board has also reviewed the findings of the Social Security Administration (SSA), found that the Veteran is disabled with a primary diagnosis of degenerative disc disease and a secondary diagnosis of essential hypertension. The evidence of record does not demonstrate that the Veteran's service-connected disability alone resulted in unemployability. As noted above, the Veteran did not miss any work due to his service-connected disability within the prior 12 months and his disability has not worsened during the period on appeal and as noted above, the Veteran does not meet the criteria for entitlement to TDIU. In short, the evidence of record overwhelmingly shows that the Veteran's inability to obtain and maintain employment is due to the Veteran's nonservice-connected disabilities. There is no evidence that the Veteran's service-connected enucleation of the right eye with secondary glaucoma and left eye dry eye syndrome, cataracts, and open angle glaucoma, on its own, results in such impairment as to render the Veteran unable to work. As such, there is simply no evidence of unusual or exceptional circumstances to warrant referral for extraschedular consideration of a total disability rating based on the Veteran's service-connected disability. Given the above, the preponderance of the evidence does not support the Veteran's assertion that his service-connected disabilities are of such severity as to preclude his participation in any form of substantially gainful employment. Accordingly, the Board concludes that referral of this claim for consideration of TDIU on an extraschedular basis is not warranted. The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Therefore, the Veteran's claim for entitlement to a TDIU is denied. From March 21, 2019 (Continued on the next page) Service connection is in effect only for the bilateral eye disability rated as 100 percent disabling. Thus, the percentage requirements for a TDIU are met because the Veteran has one service-connected disability rated at least 60 percent disabling. 38 C.F.R. § 4.16(a). However, because the Veteran is in receipt of a 100 percent rating for this period and has no additional service-connected disabilities, consideration of a total disability rating based upon individual unemployability would be moot. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.