Citation Nr: 22045771 Decision Date: 08/11/22 Archive Date: 08/11/22 DOCKET NO. 17-13 072 DATE: August 11, 2022 ORDER Entitlement to a disability rating higher than 10 percent for right eye photophobia is denied. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU), to include on an extra-schedular basis, is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right eye disability is manifested by no worse than 20/40 corrected distance visual acuity and concentric contraction of visual field of no less than 54 degrees, with no evidence of impairment of muscle function or 3 incapacitating episodes within a twelve-month period. 2. Throughout the period on appeal, the Veteran's service-connected right eye disability is not shown to preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for right eye photophobia 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 6009. 2. The criteria for entitlement to a TDIU, to include on an extra-schedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1970 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in September 2021. In June 2021, the Veteran testified at a virtual Board hearing before the undersigned. The Board's September 2021 decision found that a claim for a TDIU is part-and-parcel to the Veteran's increased rating eye claim on appeal, as it was raised during the Veteran's June 2021 Board hearing. The matters were remanded for further development, to include obtaining any outstanding treatment records and to afford the Veteran a new VA eye examination to assess the current severity of his right eye disability. The Board finds that there has been substantial compliance with its September 2021 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Higher 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 caused by a given disability. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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, if different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Entitlement to a disability rating higher than 10 percent for right eye photophobia The Veteran seeks a higher rating for his service-connected right eye disability, which is currently rated as 10 percent disabling under Diagnostic Code 6009 (unhealed eye injury). 38 C.F.R. § 4.79, Schedule of ratings - eye. 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. 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, Diagnostic Code 6009 instructed to evaluate pursuant to the General Rating Formula, which instructed to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. To meet the criteria for a 20 percent rating under this diagnostic code, the evidence must demonstrate incapacitating episodes of a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A Note following the General Rating Formula 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, Diagnostic Code 6009 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye, which 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. Under the amended regulations, 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. 38 C.F.R. § 4.79. 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. 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. 38 C.F.R. § 4.75(c). Under both the former and revised criteria for Diagnostic Code 6066, visual acuity, a 20 percent rating is warranted when visual acuity in one eye (the poorer eye) is 20/200, and vision in the other eye is 20/40; or when visual acuity in one eye (the poorer eye) is 15/200, and vision in the other eye is 20/40. 38 C.F.R. § 4.79. Regarding impairment of the field of vision, 38 C.F.R. § 4.76a, Table III, provides that the normal visual field extant at the 8 principal meridians totals 500 degrees. The normal values for the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight principal meridians. Under both the former and revised criteria for Diagnostic Code 6080, when the remaining visual field is 46 to 60 degrees unilaterally, a 10 percent disability rating is assigned, or the affected eye may be evaluated as 20/50. 38 C.F.R. § 4.79. When the remaining visual field is 31 to 45 degrees unilaterally, a 10 percent disability rating is assigned, or the affected eye may be evaluated as 20/70. Id. When the remaining visual field is 16 to 30 degrees unilaterally, a 10 percent disability rating is assigned, or the affected eye may be evaluated as 20/100. Id. When the remaining visual field is 6 to 15 degrees unilaterally, a 20 percent disability rating is assigned, or the affected eye may be evaluated as 20/200. Id. When the remaining visual field is 5 degrees or less, a 30 percent disability rating is assigned, or the affected eye may be evaluated as 5/200. Id. When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the visual acuity and visual field defect are separately evaluated and combined under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.77(c). Turning to the evidence of record, during the Veteran's February 2016 VA examination, right eye corrected distance vision measured 20/40. The Veteran reported extreme sensitivity to light. No evidence of impairment of muscle function, to include diplopia, or any incapacitating episodes within a twelve-month period was found. However, the examiner noted the presence of right eye visual field defect. Goldmann perimetry as to the Veteran's service-connected right eye showed the remaining visual fields were, in degrees: Meridian Normal degrees Right Eye Temporally 85 74 Down temporally 85 68 Down 65 56 Down nasally 50 46 Nasally 60 55 Up nasally 55 50 Up 45 32 Up temporally 55 48 Total 500 429 Adding the remaining visual field at each principal meridian results in a total remaining visual field of 429. Dividing 429 by 8 and rounding to the nearest whole number, results in an average concentric contraction of 54 degrees of the visual field for the service-connected right eye. Regarding the April 2022 VA examination, right eye corrected distance vision measured 20/40. The Veteran reported that his sensitivity to light lessened after placement of a right eye artificial iris in 2021. The examiner found no evidence of visual field defect, impairment of muscle function, or any incapacitating episodes within a twelve-month period. Post-service VA and private treatment records throughout the period on appeal are also silent for evidence of right eye corrected distance measuring at least 20/200, any impairment of muscle function, or any visual field defect. As to incapacitating episodes within a twelve-month period, the Veteran underwent surgery to place an artificial iris in his right eye in October 2021. The record is silent for any further evidence of incapacitating episodes within a twelve-month period severe enough to require either prescribed bed rest and treatment by a physician or a clinic visit to a provider specifically for treatment purposes, to include systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Upon review of the relevant evidence, the Board determines that a disability rating higher than 10 percent for the Veteran's service-connected right eye photophobia is not warranted. As the Veteran is only service-connected for his right eye, the visual acuity of his non-service-connected right eye is considered to be 20/40 for purposes of evaluating the right eye visual impairment. 38 C.F.R. § 4.75(c). For the next-higher 20 percent rating to be warranted, the evidence must demonstrate right eye corrected distance measuring at least 20/200, impairment of muscle function, right eye visual field defect, or incapacitating episodes within a twelve-month period. Here, the medical evidence of record, to include the 2016 and 2022 VA examination reports and post-service VA and private treatment records, demonstrates right eye corrected distance vision to no worse than 20/40, which, when evaluated with the assigned 20/40 visual rating acuity for the non-service-connected left eye, equates to a noncompensable rating based on impairment of visual acuity. The Veteran's right eye visual field defect noted during the 2016 VA examination may be evaluated based on either remaining visual field degrees or based on visual acuity assigned for remaining visual field degrees, whichever results in the higher rating. As the Veteran's remaining visual field during the period on appeal was no worse than 54 degrees in his service-connected right eye, a 10 percent disability rating is warranted for unilateral visual field defect with remaining visual field of the service-connected right eye between 46 to 60 degrees. However, remaining visual field criteria also instructs to evaluate the Veteran's right eye as 20/50, as his average remaining visual field is 54 degrees in his right eye (when remaining visual field of 46 to 60 degrees, each affected eye is evaluated as 20/50. When applying visual acuity of 20/50 for the service-connected right eye and 20/40 for the non-service-connected left eye to determine visual field defect, a 10 percent disability rating would be warranted. Thus, both evaluations (based on a unilateral rating for remaining visual field of 54 degrees as to the service-connected right eye or based on applying visual acuity of 20/50 for the service-connected right eye and 20/40 for the non-service-connected left eye) result in a 10 percent disability rating for uniliteral visual field defect for the right eye. To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present, VA separately evaluates the visual acuity and visual field defect (expressed as a level of visual acuity) and combines them under the provisions of 38 C.F.R. § 4.25. When combining the Veteran's corresponding service-connected right eye visual acuity impairment throughout the period on appeal of a noncompensable (zero percent) rating with his 10 percent rating for unilateral visual field defect, a 10 percent rating is appropriate. The Board has considered whether a higher rating or any additional ratings are warranted under an alternative diagnostic code but finds that there is no indication that the Veteran has impairment of muscle function (diplopia) or at least 3 incapacitating episodes within a twelve-month period severe enough to require either prescribed bed rest and treatment by a physician or a clinic visit to a provider specifically for treatment purposes, to include systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions to warrant any higher or additional ratings. Although the 2016 and 2022 examiners note a diagnosis of right eye cataract with a replacement lens present (pseudophakia), under Diagnostic Code 6027, this disorder would also be evaluated under the General Rating Formula for Diseases of the Eye, and as stated, the record is silent for evidence of at least 3 incapacitating episodes to warrant a higher rating. Therefore, the Board concludes that the currently assigned 10 percent disability rating for right eye photophobia is appropriate, and a higher rating is not warranted. In conclusion, the Veteran's claim for a disability rating higher than 10 percent for right eye photophobia is denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TDIU 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). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16. 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). Entitlement to a TDIU, to include on an extra-schedular basis The Veteran contends that he is unable to work due to his service-connected right eye disability, currently rated as 10 percent disabling. The Veteran has no other service-connected disabilities. With a combined overall rating of 10 percent, he does not meet the minimum rating requirements for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). However, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extra-schedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Although the Board may not grant a TDIU in the first instance under this regulation, it must consider whether referral to the Director of Compensation and Pension Service (Director) for extra-schedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Referral to the Director is warranted when there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); see 38 C.F.R. § 4.16(b) (stating that, when submitting a veteran's case to the Director, "[t]he rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue"). Upon review of the relevant evidence, the Board determines that there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected right eye disability. Throughout the period on appeal, the Veteran's corrected distance vision in his right eye was no worse than 20/40. His right eye visual field defect was very minimal, and the record is silent for evidence of diplopia or any incapacitating episodes other than a right eye iris implant in 2021, which the 2022 examiner found had improved the Veteran's sensitivity to light. While the Veteran reported during his 2016 VA examination that he had difficulty performing work indoors or outdoors with bright illumination, and that wearing a hat or sunglasses was not enough, the 2022 VA examiner opined that the Veteran's right eye disability does not preclude him from working altogether. Here, the Veteran is only service-connected for his right eye. He is not service-connected for any impairment that impacts activities such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, or hearing, nor is he service connected for any mental disability that may impact his productivity or his ability to concentrate. While his eye disability may result in a need to take more frequent days off or breaks during work to rest his eye, the Board is not persuaded that this disability alone has prevented him from securing or following a substantially gainful occupation for any part of the period on appeal. Therefore, referral to the Director of Compensation Service for extra-schedular consideration is not warranted under 38 C.F.R. § 4.16(b), and the claim for a TDIU must be denied. JONATHAN B. KRAMER 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.