Citation Nr: 1634843	
Decision Date: 09/06/16    Archive Date: 09/09/16

DOCKET NO.  11-33 211	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to an initial compensable rating for bilateral dry eye syndrome.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Spitzer, Associate Counsel


INTRODUCTION

The Veteran had active service from August 2003 to May 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

In May 2012, the Veteran provided testimony at a travel Board hearing.  A transcript of the hearing is of record.

In November 2014, the Board remanded the current issue for further evidentiary development.  The case is once again before the Board.


FINDING OF FACT

The Veteran's bilateral dry eye syndrome has been manifested by dry, itchy, and red eyes at all times during the pendency of the appeal.


CONCLUSION OF LAW

The criteria for an initial rating of 10 percent, but no higher, for bilateral dry eye syndrome have been met for the entire period on appeal.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.79, Diagnostic Code 6099-6018 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duty to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In this case, the Veteran is challenging the initial disability rating assigned following the grant of service connection for bilateral dry eye syndrome.  In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006).  Thus, VA's duty to notify has been satisfied.

The record also reflects that VA has made reasonable efforts to obtain all relevant records.  The Veteran's service treatment records are on file, as are post-service VA treatment records and lay statements.

VA's duty to assist also includes affording a veteran a VA examination when warranted.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the Veteran underwent VA examinations in January 2011 and January 2015.  The examination reports provide the medical information needed to address his claim pursuant to the relevant rating criteria, and the Veteran has not alleged that his dry eye syndrome has worsened since the last examination.  Therefore, the Board finds that the duty to assist has been satisfied.

Finally, the Board notes that the action requested in the prior remand has been undertaken to the extent possible, in that the Veteran was afforded another VA examination.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

II. Analysis

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for that disability, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The March 2011 rating decision on appeal granted service connection for bilateral dry eye syndrome and assigned a noncompensable rating under 38 C.F.R. § 4.79, Diagnostic Code 6099-6001, effective May 20, 2010.  

The Board finds that the Veteran's bilateral dry eye syndrome, given its location and adverse symptomatology, is best rated by analogy to chronic conjunctivitis under 38 C.F.R. § 4.79, Diagnostic Code 6018.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence).

In this regard, Diagnostic Code 6018 provides a 10 percent rating for chronic conjunctivitis (nontrachomatous) when it is active (i.e., with objective findings, such as red, thick conjunctivae, mucous secretion, etc.).  38 C.F.R. § 4.79.

With the above criteria in mind, the Board notes that at his May 2012 Board hearing, the Veteran testified that his eyes are painful and irritated, and that his eyelids often become fused, causing him difficulty sleeping through the night.  He also testified that he uses eye drops, but that such are only effective when he can open his eyes, and that his eyes frequently water and otherwise become inflamed with sties, causing interference with his vision.  Similarly, during VA examinations in January 2011 and January 2015, he reported longstanding dry eyes, causing his eyelids to close and his eyes to burn and become red.  Both examiners diagnosed bilateral dry eye syndrome, and VA treatment records note prescriptions for artificial tears.  The Veteran reported similar symptoms in various lay statements throughout the course of the appeal, including irritated and painful eyes which sometimes cause impaired vision.  Given that the symptomatology noted by the Veteran is observable by a lay person, and that he has consistently reported these symptoms during the course of the appeal, the Board finds the reports of his symptoms both competent and credible.  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).

Given the above record, the Board finds that the Veteran's bilateral dry eye syndrome is manifested by dry, itchy, and red eyes.  Therefore, the Board finds that this symptomatology equates to active chronic conjunctivitis.  Accordingly, the Board finds that the criteria for a 10 percent rating under Diagnostic Code 6018 have been met for the entire appeal period.  38 C.F.R. § 4.79.  

The Board has also considered ratings under other diagnostic codes, but finds that such ratings are not warranted in this case.  The January 2011 and January 2015 VA examiners recorded the Veteran's corrected visual acuity as 20/20 (right), 20/20 (left), and 20/40 or better (right) and 20/40 or better (left), respectively.  VA treatment records do not show a loss of visual acuity, and the Veteran testified that his corrected vision is 20/20.  Therefore, a compensable rating under Diagnostic Code 6066 for impairment of visual acuity is not warranted.  The Veteran's visual fields were also found to be full on the January 2011 VA examination and during VA eye treatment in January 2014.  See Diagnostic Code 6080.  The January 2011 VA examiner noted pinguecula, but that condition has not been service-connected or medically attributed to a service-connected condition, nor has it been shown to cause scarring or disfigurement.  See Diagnostic Codes 6037, 7800.  The January 2015 VA examiner noted superficial punctate keratitis secondary to dry eyes, but reported that the condition did not cause scarring or disfigurement; therefore, a rating under Diagnostic Code 7800 is unavailable.  Finally, neither the VA examination reports nor VA treatment records showed any evidence of tuberculosis, retinal scars, glaucoma, neoplasms, nystagmus, ptosis, ectropion, entropion, lagophthalmos, loss of eyebrows, lids, or lashes, lacrimal apparatus disorders, neuropathy, cataracts, aphakia, paralysis, pterygium, keratoconus, impairment of muscle function or incapacitating episodes.  See 38 C.F.R. § 4.79, Diagnostic Codes 6010-6017, 6019-6027, 6029, 6030, 6032, 6034, 6035, 6090-6091.  

The Board has taken into account the Veteran's assertions as to the symptomatology and the severity of his bilateral dry eye syndrome, including his reported symptoms of pain, irritation, and excessive watering causing temporary decreased vision and sleeplessness, and his reported difficulties working, walking outdoors, reading and driving, but, to the extent that he believes that he is entitled to a rating in excess of 10 percent, the Board concludes that the findings during medical evaluations are more probative than the lay assertions to that effect.  Although the Veteran's representative asserted in June 2016 that the January 2015 VA examination was not conducted during an active outbreak of the dry eye syndrome, the Board notes that the January 2015 examination findings are consistent with the other medical evidence of record showing that the Veteran's bilateral dry eye syndrome is manifested by dry and irritated eyes causing temporary, but not permanent, visual impairment.  Therefore, the Board finds that such symptomatology is contemplated by the 10 percent rating assigned in this decision.  

In summary, the Board finds that the criteria for an initial rating of 10 percent, but no higher, for bilateral dry eye syndrome have been met for the entire period on appeal.  

The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability.  See Thun v. Peake, 22 Vet. App. 111, 118 (2008). 

Here, the rating criteria for eye disabilities reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence, including impairments in visual acuity, visual field, and muscle function.  Indeed, the rating criteria specifically contemplate red, irritated eyes.  In short, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun, 22 Vet. App. at 115.  The Board acknowledges the Veteran's testimony that if a sty is present in his eye he has to stop working. However, the evidence does not suggest that the Veteran's bilateral dry eye syndrome has resulted in marked interference with employment above and beyond that considered by the assigned disability evaluation, or that the Veteran has been frequently hospitalized as a result of this condition.  Consequently, referral for extraschedular consideration is not warranted.  Id.

Finally, the Veteran has not asserted that his bilateral dry eye syndrome has rendered him unemployable, nor does the evidence suggest such.  On the contrary, the Veteran is currently employed.  Thus, the Board finds that a claim for a total disability rating based on individual unemployability has not been raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

From May 20, 2010, a rating of 10 percent, but no higher, for bilateral dry eye syndrome is granted, subject to the rules and regulations governing the payment of VA monetary benefits. 



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs