Citation Nr: 22010529 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 15-41 001A DATE: February 23, 2022 ORDER A disability rating higher than 30 percent for detached retina, left eye, is denied. From June 8, 2021, special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(4) is granted; subject to the rules and regulations governing the payment of monetary awards. REMANDED Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU) on an extraschedular basis is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's left eye corrected distance vision was 5/200, with no more than light perception in one eye, but not anatomical loss of one eye. 2. From June 8, 2021, the Veteran's service-connected left eye is shown to have caused loss of use, with an inability to recognize test letters at 1 foot and perceive objects, hand movements, or count fingers at 3 feet. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 30 percent for detached retina, left eye, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code 6064. 2. The criteria for an award of special monthly compensation based on loss of use or blindness in the left eye, having only light perception, are met as of June 8, 2021. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(4). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1965 to March 1977 and from May 1985 to April 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in January 2019. The Board's January 2019 remand directed the RO to obtain any outstanding VA and private treatment records and afford the Veteran a new VA eye examination. The Board finds that there has been substantial compliance with its January 2019 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). In it is January 2019 decision, the issue of entitlement to service connection for a psychiatric disorder was remanded for further development. In a November 2020 rating decision, service connection for insomnia disorder was granted. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating higher than 30 percent for detached retina, left eye The Veteran seeks a higher disability rating for his service-connected detached retina, left eye, which is currently rated as 30 percent disabling under Diagnostic Code 6066 (visual acuity in one eye 10/200 or better). 38 C.F.R. § 4.79, Schedular of ratings eye. The Board's January 2019 decision granted service connection for left eye disability, assigning an initial 30 percent disability rating, and remanded the issue of entitlement to a rating higher than 30 percent for left eye disability to afford the Veteran a new VA examination to assess the current severity of his left eye disability. During the period on 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. 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. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. 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. 38C.F.R. §4.75(c). Under both the former and revised criteria for Diagnostic Code 6066, when visual acuity in one eye (the poorer eye) is 10/200 and vision in the other eye is 20/40, a 30 percent rating is assigned. 38 C.F.R. § 4.79. 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). Based on a review of the relevant evidence, the Board finds that a disability rating higher than 30 percent for detached retina, left eye, is not warranted. As the amended regulations went into effect during the rating period on appeal, both the former and revised criteria under Diagnostic Code 6066 are for consideration, which instruct to evaluate the Veteran's left eye disability based on visual impairment. For the next-higher 40 percent disability rating to be warranted, the evidence must show anatomical loss of the left eye with vision in that eye being 5/200. As the Veteran is only service-connected for his left eye, the visual acuity of his non-service-connected right eye is considered to be 20/40 for purposes of evaluating left eye visual impairment. 38 C.F.R. § 4.75(c). Here, the most recent June 2021 VA examination reflects left eye corrected distance vision measuring 5/200, with no more than light perception in one eye. However, the 2021 examiner found no evidence of anatomical loss of the left eye, and post-service treatment records throughout the period on appeal are also silent for this evidence. Thus, when combining left eye visual acuity of 5/200 with visual acuity in the non-service-connected right eye of 20/40, pursuant to 38 C.F.R. § 4.75(c), this equates to a 30 percent disability rating based on visual acuity under Diagnostic Code 6064 (no more than light perception in one eye), the highest available disability rating for visual impairment of an eye where there is no anatomical loss of the eye. Therefore, the currently assigned 30 percent disability rating for detached retina, left eye, is appropriate, and a higher rating is not warranted. A note under Diagnostic Code 6064 also instructs to consider whether entitlement to special monthly compensation is warranted when there is no more than light perception in one eye, as is the case here. Under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(4), special monthly compensation is payable if a Veteran has loss of use or blindness of one eye, having only light perception, which will be held to exist when there is an inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet is considered of negligible utility. Here, the June 8, 2021 VA examination report reflects that the Veteran's left eye vision is limited to no more than light perception, with an inability to recognize test letters at 1 foot or closer and an inability to perceive objects, hand movements, or count fingers at 3 feet. Post-service treatment records earlier than June 8, 2021 are silent for evidence of no more than light perception in the left eye, with an inability to recognize test letters at 1 foot or closer and an inability to perceive objects, hand movements, or count fingers at 3 feet. Therefore, from June 8, 2021, special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(4) is warranted. In conclusion, the Veteran's claim for a disability rating higher than 30 percent for detached retina, left eye, is denied and special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(4) is granted. REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis is remanded. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Veteran contends that his service-connected left eye disability renders him unemployable. In its January 2019 decision, the Board remanded the issue of entitlement to a TDIU for further development. While the Veteran is in receipt of an overall combined disability rating of 70 percent from August 28, 2014, he does not meet the minimum rating requirements of § 4.16(a) for consideration of a TDIU rating on a schedular basis because he does not have one disability rated at 40 percent disabling or more. However, the December 2014 and June 2021 VA eye examiners found that the Veteran's left eye disability impacts his ability to work. Specifically, they 2014 examiner stated that, with left eye corrected distance vision of 20/200, it would be difficult to work. The 2021 examiner found that the Veteran's left eye corrected distance vision is 5/200, with vision limited to no more than light perception, as the Veteran is unable to recognize test letters at 1 foot or closer and perceive objects, hand movements, or count fingers at 3 feet. The examiner indicated that the Veteran is visually and functionally disabled due to his left eye disability. The Board finds that a remand for referral of the Veteran's claim to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis is warranted. The probative medical evidence reflects that the Veteran may experience difficulty obtaining and maintaining employment consistent with his educational and work background due to his service-connected left eye disability. As the Board is precluded from awarding an extraschedular TDIU in the first instance, on remand, the Veteran's claim must be referred to VA's Director of Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: 1. Refer the Veteran's claim for entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service for consideration under 38 C.F.R. § 4.16(b). A copy of the Director's decision on this claim must be included in the electronic claims file. The Director is asked to consider whether the Veteran's service-connected disabilities, warrant an extraschedular TDIU. 2. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.