Citation Nr: 22051113 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 13-23 792 DATE: September 8, 2022 ORDER A temporary total rating based on eye surgery necessitating convalescence under 38 C.F.R. § 4.30, from June 13, 2011 to September 10, 2011, is granted. REMANDED The issue of entitlement to a disability rating based on individual unemployability (TDIU) for the period prior to July 19, 2011 is remanded. FINDING OF FACT The Veteran underwent surgery to address his service-connected cataract, with detached lens, left eye, on June 13, 2011, that required convalescence until September 10, 2011. CONCLUSION OF LAW The criteria for a temporary total rating for convalescence for left eye surgery, from June 13, 2011 to September 10, 2011, are met. 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to August 1970, November 2004 to November 2008 and December 2008 to January 2010. He also had more than 29 years of reserve component service. The Veteran died in April 2017. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 and December 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. These matters were previously before the Board, in August 2016. At that time, the claim for a temporary total rating was remanded in order for the RO to issue a Statement of the Case (SOC) addressing the Veteran's Notice of Disagreement. See Manlicon v. West, 12 Vet. App. 238 (1999). The issue of the Veteran's entitlement to an extraschedular TDIU prior to July 19, 2011 was remanded as inextricably intertwined with the claim for a temporary total evaluation. The record reflects that the RO issued an SOC in January 2020, and the appellant appealed in March 2020. The matters have now returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). A temporary total rating based on eye surgery necessitating convalescence under 38 C.F.R. § 4.30, from June 13, 2011 to September 10, 2011 The Veteran is service connected for cataract with detached lens, left eye associated with diabetes mellitus type 2, effective September 2, 2010, with a 30 percent rating assigned from June 13, 2011. For eligibility to a temporary total disability rating, the Veteran must demonstrate that his service connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). The record reflects that the Veteran underwent surgery on his left eye on June 13, 2011. At that time of the procedure, an intraocular lens could not be placed due to instability and, as a result, the Veteran could not see from his left eye following the surgery. He was discharged after the surgery in stable condition, with instruction to avoid bending with his head down or heavy lifting. The Veteran had follow-up surgery on his left eye on September 12, 2011 for implantation of a lens. VA treatment records reflect that the Veteran's vision was restored and improved following the September 2011 surgery. The Board finds that the Veteran's loss of vision in his left eye following the June 13, 2011 surgery was a severe, postoperative residual, and that he was in convalescence from the date of surgery until September 12, 2011, when a lens was implanted and the Veteran's vision was restored. Accordingly, a temporary total rating under 38 C.F.R. § 4.30 is granted for that period. REASONS FOR REMAND Extraschedular TDIU The Board granted a TDIU, effective July 19, 2011, as part of the August 2016 decision. As noted, the issue of whether the Veteran was entitled to an extraschedular TDIU prior to that date was remanded as part of the decision. The Veteran is service connected for obstructive sleep apnea, diabetes mellitus, cataract with detached lens, left eye, tinnitus, bilateral hearing loss and hypertension during the period prior to July 19, 2011. The Veteran had a combined 50 percent disability rating from January 4, 2010, based on his ratings for sleep apnea and diabetes. 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the claimant at issue is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). Recently, in Snider v. McDonough, the Court clarified the standard by which VA is to determine whether referral for extraschedular consideration for a TDIU is appropriate. 35 Vet. App. 1 (2021). In Snider, the Court held that in determining whether extraschedular referral is warranted, VA is to consider whether there is sufficient evidence to substantiate a "reasonable possibility" that the veteran at issue is unemployable because of service-connected disabilities. Id. at 6-7 (citations omitted). The Court then specified that a decision regarding whether referral is appropriate is analogous to a determination as to whether a VA examination is warranted under McClendon v. Nicholson, 20 Vet. App. 79 (2006). Id. at 8-9. Applying Snider in the instant case leads the Board to conclude that there is a reasonable possibility that the Veteran's service-connected disabilities rendered him unemployable during the period in question. The record reflects that the Veteran's diabetes was routinely described as "uncontrolled" during 2010, and the Veteran complained of numbness in his arms, hands, legs and feet, and a lack of energy. The Veteran also reported blurry vision in his left eye. The Veteran's sleep apnea was noted to cause daytime fatigue with daytime somnolence and poor sleep hygiene that was getting progressively worse. The Veteran reported in February 2010 that he had loss of feeling in his hands and legs, and did not think he could pass a physical or hold a job. In March 2011 the Veteran reported that he could not pass an eye examination to get a job. Based on the foregoing, the Board finds that there is a reasonable possibility that the Veteran's service-connected disabilities rendered the Veteran unemployable during the period prior to July 19, 2011. Accordingly, the claim is referred to the Director for initial consideration of whether a TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b); Snider, supra. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to July 19, 2011 to the Director, Compensation Service, for extraschedular consideration. C.B. IWANOWSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.