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Board Erred in Denying an Increased Rating for the Veteran’s Eye Conditions, Court Finds

Board Erred in Denying an Increased Rating for the Veteran’s Eye Conditions, Court Finds

Summary of the Case

The Veteran served on active duty in the United States Navy from October 1943 to September 1947, officially as a radioman first class.  During service, he was exposed to extensive radiation in the South Pacific while aboard the U.S.S. Fall River.  The Veteran later filed a claim for service connection for opthalmoparesis and diplopia as due to such exposure, but was initially denied.  He continued to appeal to the Board of Veterans’ Appeals and in November 2009, the Board remanded his claim for service connection.  Subsequently, in January 2013, the Veteran was granted service connection for his eye conditions with a noncompensable (i.e. zero percent) disability rating.  From here, the Veteran continued to appeal for an increased rating for his eye conditions, to include a total disability rating based on individual unemployability (TDIU).  In September 2017, the Board issued a decision that granted a 30 percent disability rating, but no higher, including on an extraschedular basis for his eye conditions.  In its decision, the Board also remanded the Veteran’s claim for TDIU.  The following appeal ensued.

CCK appeals for higher rating for the Veteran’s eye conditions

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied the Veteran entitlement to a disability rating in excess of 30 percent, including on an extraschedular basis, for his eye conditions.  CCK argued that the Board erred when it denied the Veteran entitlement to extraschedular referral for his service-connected eye conditions based on its conclusion that the schedular criteria were “more than adequate” to rate the condition.  Specifically, the Veteran experienced symptoms such as dizziness with flashes of light and visual changes, lightheadedness, eye twitching, heavy-feeling eyes, and a “pocket” forming in his throat, none of which were contemplated by his assigned schedular rating.  However, the Board did not discuss these symptoms at all or explain how they factored into its conclusion that the schedular criteria were sufficient.  Additionally, CCK argued that the Board erred when it denied extraschedular referral while simultaneously remanding the issue of entitlement to TDIU for further development.  This further development ordered would have provided additional information on the severity of the Veteran’s eye condition and its impact on his employability, which is relevant to an extraschedular analysis.

Finally, CCK asserted that the Board erred when it denied the Veteran entitlement to separate ratings for his diagnosed additional eye conditions, including bilateral cataracts, right eye asteroid hyalosis, and left eye vitreous floaters.  Here, the Board addressed whether separate ratings were warranted, but relied on a September 2013 VA examination to conclude that they were not.  The examination simply stated that the conditions were age-related without including any further rationale.  Therefore, the reasons or bases for the Board’s conclusion were insufficient.

Court finds legal error, remands Veteran’s claim

CCK argued, and the Court agreed, that the Board erred in failing to remand the issue of referral for extraschedular consideration as inextricably intertwined with the matter of entitlement to TDIU.  The Court concluded that because TDIU was remanded for further development, any evidentiary development regarding the effects of the Veteran’s service-connected eye conditions and its impact on the Veteran’s employability, may have a significant impact on whether referral for extraschedular consideration is warranted.  The Court also found that the Board erred by relying on an inadequate September 2013 VA examination to determine that the Veteran’s bilateral cataracts, right eye asteroid hyalosis, and left eye vitreous floaters were not related to his service, as the report contained no rationale for its conclusion and did not address the theory of aggravation.  Accordingly, the Court determined that remand is required for the Board to provide an adequate statement of reasons or bases as to whether the Veteran’s bilateral cataracts, right eye asteroid hyalosis, and left eye vitreous floaters are subject to service connection.

Category: Court Wins

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