Citation Nr: 21042475 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-22 692 DATE: July 13, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for pigmentary glaucoma from June 11, 2012 through June 30, 2021 is remanded. Entitlement to a disability rating in excess of 20 percent for pigmentary glaucoma from form July 1, 2021 is remanded. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1983 until his honorable discharge in June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Muskogee, Oklahoma Regional Office (RO) of the United States Department of Veterans Affairs (VA). In July 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Muskogee, Oklahoma. A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 60 days to allow for the submission of additional evidence. In May 2018, the Board remanded the case to the RO for further development. 1. Entitlement to a disability rating in excess of 30 percent for pigmentary glaucoma from June 11, 2012 through June 30, 2021 2. Entitlement to a disability rating in excess of 20 percent for pigmentary glaucoma from form July 1, 2021 Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. 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. 15,316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Prior to May 13, 2018, where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula for Diseases of the Eye indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Under the revised criteria, the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091. The Board notes that the June 2021 VA examiner indicated that the Veteran has had 7 or more incapacitating episodes in the prior 12 months of laser treatments and oral medications to lower the pressure in his eyes due. However, the June 2021 VA examiner did not indicate what eye conditions have caused the treatment visits over the prior 12 months nor considered the entire period on appeal nor did they discuss how the oral medications prescribed to the Veteran required a clinic visit which would count towards an incapacitating episode under the revised criteria. In contrast, the February 2021 VA examiner indicated no incapacitating episodes in the prior 12 months. If both the February 2021 and June 2021 VA examinations were accurate, that would result in 7 or more incapacitating episodes in only 4 months and are therefore inconsistent with each other. In contrast, the Veteran indicated that he has had 64 treatment visits from May 17, 2012 through April 15, 2021. The Board also notes that the "treatment visits" provided by the Veteran are not clear as to the reason for the treatment(s) and if they are directly related to his service-connected disabilities. Furthermore, the Veteran's private treatment records are also unclear as to incapacitating episodes under both the prior criteria and the revised criteria. Finally, the Veteran provided a Disability Benefits Questionnaire (DBQ) completed by his private provider in August 2017. The August 2017 DBQ completed block 6A concerning incapacitating episodes attributable to any eye condition, both checking the "yes" box and putting an "X" in the "no" box. The private provider indicated that the Veteran had surgery for cataracts and glaucoma on December 5, 2016 (right eye) and December 19, 2016 (left eye). However, the private provider failed to provide details upon the incapacity, including but not limited to describing how the eye condition(s) caused incapacitating episodes nor to clarify if the incapacity was due to his service-connected glaucoma versus his non-service-connected cataracts. The private provider simply provided that the incapacitating episodes over the prior 12 months lasted at least 2 weeks but less than 4 weeks. Finally, the private provider failed to complete the corrected distance visual acuity evaluation under Section III of the physical examination, noting "not needed since cataract surgery 12-2016," but indicated that the Veteran's uncorrected distance visual acuity was 20/40 or better. Because the Veteran's VA examinations throughout the period on appeal reflect a corrected distance visual acuity of 20/40 or better and do not reflect a visual field defect, the remaining criteria for an increased evaluation to consider is incapacitating episodes. The question remains of which treatments and/or periods of incapacity (if any) are due to his service-connected eye disabilities and which treatments and/or periods of incapacity are due to his non-service-connected eye disabilities (if any). For example, the Veteran's private treatment records reflect laser peripheral iridotomy in June 2012 and selective laser trabeculoplasty in August 2012 with a history of pigmentary OAG and pseudophakia bilaterally. However, it is unclear if either (or both) treatments caused incapacity (a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider), and if so, was it due to his service-connected pigmentary glaucoma or his non-service-connected cataracts. 3. Entitlement to TDIU is remanded. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU due to service-connected disability either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has asserted that he is unemployed and unemployable due to his service-connected disabilities. During the June 2021 VA examination, the examiner noted that the Veteran's eye condition(s) impact his ability to work based upon difficulty to control the pressure in his eye(s), frequent visits to see his private provider which often results in dilation and oral medication(s). The Board finds that the issue of entitlement to a TDIU has been raised by the record and must be remanded for proper development pursuant to Rice. The RO has not addressed the issue of entitlement to a TDIU in the first instance. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for updated private treatment records for any provider that has treated his pigmentary glaucoma since the most recent private records were received and for any other periods during the period on appeal that may not be of record (back to June 11, 2011, 1-year prior to the Veteran's supplemental claim). Make two requests for the authorized records from any relevant private treatment facilities, unless it is clear after the first request that a second request would be futile. 2. Obtain updated VA treatment records from March 24, 2021 to present from the Oklahoma City VAMC and any other VA treatment records that are not already in the file including but not limited to Beckley VAMC, South Oklahoma City VAMC. 3. After the above has been completed, obtain an addendum opinion from an appropriate clinician to determine the current severity of his service-connected pigmentary glaucoma. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is requested to specifically opine on the Veteran's incapacitating episodes related to only his service-connected pigmentary glaucoma, if any, during the entire period on appeal specifically addressing incapacitating episodes prior to May 13, 2018 under the appropriate criteria (a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider) and incapacitating episodes related to only his service-connected pigmentary glaucoma from May 13, 2018 under the former or revised criteria (an eye condition severe enough to require a clinic visit to a (medical) provider specifically for treatment purposes). The examiner must identify the criteria for incapacitating episodes utilized for the analysis (prior to May 13, 2018 or from May 13, 2018) for each incapacitating episode throughout the period on appeal. 4. After the above has been completed, complete any development necessary regarding the claim of entitlement to a TDIU and adjudicate the claim in the first instance based on any responses provided by the Veteran or evidence submitted by the Veteran or his representative. GAYLE STROMMEN 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.