Citation Nr: 1800761 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 11-05 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of photorefractive keratoplasty. 2. Entitlement to a separate compensable rating for bilateral dry eyes associated with photorefractive keratoplasty. 3. Entitlement to an initial compensable rating for allergic rhinitis. 4. Entitlement to an initial compensable rating for hypertension. 5. Entitlement to an initial compensable rating for left hip bursitis. 6. Entitlement to an initial compensable rating for right hip bursitis. 7. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease (DDD) of the lumbar spine. 8. Entitlement to an initial rating in excess of 20 percent for cervical strain. 9. Entitlement to an initial rating in excess of 10 percent for right shoulder osteoarthritis. 10. Entitlement to a total disability rating based upon unemployability (TDIU). REPRESENTATION Appellant represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service with the United States Navy from January 1989 to January 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In January 2011, the Agency of Original Jurisdiction (AOJ) increased the cervical spine rating from 10 percent to 20 percent, effective the day after separation from service. However, because the maximum disability rating has not yet been granted, the appeal remains properly before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In May 2011, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) other than the undersigned. That VLJ became unavailable to participate in adjudication of the appeal, and so in September 2013, the Veteran testified at a second videoconference hearing before the undersigned Acting VLJ. In May 2013 and October 2014, the Board remanded the claims for additional development. The matters are now returned to the Board for further adjudication.. In February 2017, the AOJ granted a separate, 10 percent rating for right lower extremity radiculopathy associated with service-connected DDD of the lumbar spine. The Veteran has not yet appealed that decision, and the Board declines jurisdiction over such. The following issues are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ: (1) entitlement to an initial rating in excess of 10 percent for residuals of photorefractive keratoplasty; and (2) entitlement to TDIU. FINDINGS OF FACT 1. The Veteran's bilateral dry eyes include some dysfunction of the lacrimal apparatus. 2. Allergic rhinitis has not resulted in any airway obstruction or polyp development. 3. Hypertension is well controlled by medication, with diastolic pressures less than 100 and systolic pressures less than 160; and without history of diastolic pressures predominantly 100 or more. 4. Left and right hip bursitis is manifested by pain with use and slight limitations of motion. 5. The lumbar spine disability is manifested by pain with use and slight limitation of motion, without changes in gait or spinal curvature or additional neurological manifestations. 6. The cervical spine disability is manifested by flexion to no worse than 30 degrees, with pain. 7. The right shoulder disability is manifested by CONCLUSIONS OF LAW 1. The criteria for a separate, 20 percent rating for bilateral dry eyes associated with photorefractive keratoplasty have been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, Diagnostic Codes (DC) 6025, 6036 (2017). 3. The criteria for a compensable rating for allergic rhinitis have not been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6522 (2017). 4. The criteria for a compensable rating for hypertension have not been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, DC 7101 (2017). 5. The criteria for a 10 percent rating, but no higher, for left hip bursitis have been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5252 (2017). 6. The criteria for a 10 percent rating, but no higher, for right hip bursitis have been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5252 (2017). 7. The criteria for a rating in excess of 10 percent for lumbar DDD have not been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5003, 5242 (2017). 8. The criteria for a rating in excess of 20 percent for cervical strain have not been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5003, 5237 (2017). 9. The criteria for a rating in excess of 10 percent right shoulder osteoarthritis have not been met. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran generally contends that the manifestations of her aforelisted disabilities are more severe than currently rated and preclude obtaining and/or maintaining a substantially gainful occupation. See August 2010 Notice of Disagreement; February 2011 VA Form 9; May 2011 testimony. Preliminarily, the Board notes that VA attempted to assist in obtaining outstanding private treatment records that may have been relevant to the outcome of the claims; however, the Veteran never provided the required authorization. See October 2014 Board remand; December 2014 Letter (provided a VA Form 21-4142, which was never returned). As such, VA has met its duty to assist and decided the claims based on the evidence currently of record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist is not a one-way street). Disability ratings are determined by comparing the manifestations of disabilities to the applicable criteria listed in VA's Schedule for Rating Disabilities (Schedule), which is based, as far as can practically be determined, on the average impairment in earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, VA will assign the higher rating as long as the disability picture more nearly approximates the higher rating's criteria. See 38 C.F.R. § 4.7. Bilateral Dry Eyes The Veteran's underlying condition is not specifically listed in the Schedule, but the AOJ rated it by analogy to a keratopathy. See 38 C.F.R. §§ 4.20, 4.79, DC 6001; February 2017 Codesheet. However, based on the functions affected, the anatomical localization, and symptomatology, the Board has determined that it is more appropriate, and more advantageous to the Veteran, to rate his eye condition under Code 6036, for status post corneal transplant. While the Veteran has not undergone a transplant, his procedure was surgical in nature, and involved the cornea. The nature of the treatment is to effectively stop symptoms, and rating based on recurrence is not appropriate. Under Code 6036, the disability is rated based on visual impairment; this includes consideration of both central visual acuity, field of vision, and muscle function. 38 C.F.R. §§ 4.75, 4.79. The Code also calls for a minimum evaluation of 10 percent when pain, photophobia, and glare sensitivity are present. As is discussed in the Remand section below, further development for a full description of visual impairment is required. However, the Board notes that among the signs and symptoms of the corneal surgical treatment supporting any rating under DC 6036, the Veteran's primary complaint of bilateral dry eyes is not addressed. Therefore, the Board finds it appropriate to assign a separate rating for that symptom, as it is not contemplated with any rating to be assigned under Code 6036, and VA is required to rate all manifestations of disability, with consideration of prohibited pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994), 38 C.F.R. § 4.14. The Veteran has persistently reported, and treatment and examination records corroborate, the presence of bilateral dry eyes. She uses drops and gels, medication, and tear duct plugs to treat her dry eyes. DC 6025 contemplates this manifestation, allowing a 10 percent rating for a unilateral lacrimal disorder and 20 percent for a bilateral lacrimal disorder. See 38 C.F.R. § 4.79, DC 6025. As the Veteran's chronic dry eye is bilateral, a separate 20 percent rating is warranted under DC 6025. Allergic Rhinitis A 10 percent rating is warranted for allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. See 38 C.F.R. § 4.97, DC 6522. A 30 percent rating is warranted for allergic rhinitis with polyps. Id. The January 2010 VA general medical examiner documented a 12-year history of allergies, treated with Zyrtec and Rhinocort, but no history of surgery or nasal polyp surgery. The January 2010 VA ear/nose/throat (ENT) examiner diagnosed allergic rhinitis, assessed no active disease present during that examination, and noted no history of nasal operations. Although the examiner noted turbinate hypertrophy, good airway was assessed bilaterally. The April 2015 VA ENT examiner also diagnosed allergic rhinitis, noted no obstruction of the nasal passage bilaterally, and noted no nasal polyps. All of these findings are noncompensable, as a compensable rating requires either the levels of nasal passage obstruction described above or polyps. Id. As such, a compensable rating is not warranted. All potentially applicable codes have been considered and staged ratings are not warranted. See Schafrath, 1 Vet. App. at 593; Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Of note, the April 2015 VA examiner specified that the Veteran had no granulomatous conditions. See 38 C.F.R. § 4.97, DC 6522. As such, higher and/or separate compensable ratings under different codes are not currently applicable. Hypertension Hypertension for VA purposes is defined as a diastolic (bottom number) blood pressure of predominately 90 mm. or greater; isolated systolic hypertension for VA purposes is defined as a systolic (top number) blood pressure of predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, DC 7101, NOTE (1). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. A 10 percent rating is warranted for hypertension when diastolic (bottom number) pressure is predominantly 100 or more, systolic (top number) pressure is predominantly 160 or more, or there is a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. See 38 C.F.R. § 4.104, DC 7101. Review of the record reveals that while blood pressures are indeed elevated, they have never been predominantly 100 or more in the diastolic readings, and systolic readings have not reached 160. Despite the need for continuous medication for control, the criteria for an increased compensable rating have not been met, as readings have simply not been elevated to the needed levels. Left and Right Hip Bursitis The Veteran has consistently reported bilateral hip pain which impacts her functional capacity; she and her husband have commented on the effect the hip pains have on her daily life. On examination and in treatment, the presence of pain is acknowledged, but limitation of motion is not more than slight on either side, even with weight bearing. While increased symptoms with use are reported and noted, such cannot be quantified and are not shown to increase the degree of actual functional impairment. No radiographic evidence of arthritis is present. Bursitis is listed in the rating schedule under Code 5019, which directs evaluation as degenerative arthritis under Code 5003. In pertinent part, this Code provides that degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. Hip limitation of motion is rated under Codes 5250 (ankylosis), 5251 (limitation of extension), 5252 (limitation of flexion), or 5253 (limitations of abduction, adduction, or rotation). There is no ankylosis diagnosed or shown by functional equivalent. Extension is in excess of 5 degrees at all times it was measured, flexion exceeded 45 degrees, and abduction, adduction, and rotation were all well in excess of the 10 to 15 degree limits required for compensable ratings. 38 C.F.R. § 4.71a. In so finding, the Board has considered the actual level of functional impairment described by the Veteran, her spouse, and her doctors due to factors such as pain, weakness, fatigue, lack of endurance, and incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence simply fails to show such levels of impairment. However, it is clear that there is pain present, and some limitation of motion, however slight. This has a functional impact, and a 10 percent rating is therefore warranted for each hip under Code 5003, and inconsideration of 38 C.F.R. § 4.59. DDD of the Lumbar Spine Normal lumbar spine motion is: flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. The next higher 20 percent rating is warranted for: flexion greater than 30 degrees but not greater than 60 degrees; combined range of motion not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a, DC 5237, General Formula. A 40 percent rating is warranted for flexion at 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated, objective, neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Formula, Note (1). Review of the competent lay and medical evidence of record documents the Veteran's reports of continued low back pain, which at times can become severe. However, at worst, range of motion in flexion was to 80 degrees, and the combined range of motion was to 210 degrees, in December 2009. The Veteran does use medications and injections to treat her pain. Unfortunately, the evidence does not show spasm, guarding, or changes to spinal curve or gait necessary to warrant a higher rating. Increased pain and symptomatology with use was reported, but examiners could not reproduce such loss with repetitive motion testing on examination, whether with or without weight bearing. Flares of back pain are not shown to be frequent or severe enough to merit a yet higher evaluation based on an overall worse disability picture. The possibility of rating the disc disease under Code 5243, for intervertebral disc syndrome (IDVS) has bene considered, but such requires findings of incapacitating episodes. Disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months, or based upon the degree of limitation of motion. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Here, while the Veteran has reported severe symptoms at times, there is no record of any order or directive from a doctor requiring bed rest. However, in the absence of any medical statement indicating that bed rest and regular treatment were required, the definition of "incapacitating episode" has not been met at any time during the appellate period. Evaluation under these criteria is therefore not appropriate. The Board has also considered the possibility of separate ratings for neurological impairments. Right leg radiculopathy is already compensated. No similar left leg symptoms are present, and bladder dysfunction was specifically found by an April 2015 examiner to be unrelated to the back. Accordingly, no evaluation in excess of the 10 percent currently assigned for the low back disability is warranted. Cervical Strain Normal cervical spine motion is: flexion to 45 degrees, extension to 45 degrees, left and right lateral flexion to 45 degrees, and left and right lateral rotation to 80 degrees. A 30 percent rating is warranted for: flexion at 15 degrees or less; or favorable ankylosis of the entire cervical spine. See 38 C.F.R. § 4.71a, DC 5237, General Formula. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated, objective, neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Formula, Note (1). Post service records show, at worst, limitation of flexion to 30 degrees, or twice the range required for assignment of the next higher 30 percent rating. Repeated use caused no additional functional impairment on examination, and doctors could not speculate as to any impact of extended use. The Veteran herself described only "some pain" and denied more severe flare-ups. Further, the most recent 2015 VA examination actually shows clinical improvement in the cervical spine disability. No incapacitating episodes are reported or found. In short, there is no basis on which to assign any rating in excess of the currently assigned 20 percent evaluation. Right Shoulder Osteoarthritis Normal shoulder motion is: flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. A 20 percent rating is warranted for limitation of motion at the shoulder level. A 30 percent rating is assigned for motion to midway between the side and shoulder level. With movement to 25 degrees from the side, a 40 percent rating is warranted; these ratings are for the major joint, as the Veteran is right hand dominant. See 38 C.F.R. § 4.71a, DC 5201. If measured limitation of motion is not compensable under Code 5201, a 10 percent rating may be assigned for the presence of arthritis with painful or motion limited to a lesser degree. 38 C.F.R. § 4.71a, Codes 5003, 5010. The currently assigned 10 percent rating is granted under Code 5010. While VA doctors have noted limitations to overhead working, establishing functional impairment to some extent, measured range of motion is repeatedly well in excess of shoulder level, even with repeated movement and weight bearing. The Veteran's reports of pain do not demonstrate an overall disability picture which rises to the equivalent of limitation to shoulder level. The right shoulder is appropriately rated. ORDER A separate, 20 percent rating for bilateral dry eyes status post photorefractive keratoplasty is granted. A compensable rating for allergic rhinitis is denied. A compensable rating for hypertension is denied. A 10 percent rating, but no higher, for left hip bursitis is granted. A 10 percent rating, but no higher, for right hip bursitis is granted. A rating in excess of 10 percent for DDD of the lumbar spine is denied. A rating in excess of 20 percent for cervical strain is denied. A rating in excess of 10 percent for right shoulder osteoarthritis is denied. REMAND As is noted above, further development is required to properly evaluate the Veteran's current level of vision impairment due to service-connected residuals of photorefractive keratoplasty. The May 2015 VA eye examiner measured decreased visual acuity and indicated contraction, without loss, of the visual field. However, the examiner failed to specify whether the contraction was unilateral or bilateral and the degrees of the remaining field. The examiner also failed to include a Goldmann chart such that the Board could interpret the visual field results. As this information is needed to assess the severity of visual field impairment, which, in turn, is needed to assess the combined visual impairment (central visual acuity and visual field), further development is required. Finally, the question of entitlement to TDIU is inextricably intertwined with the evaluation of the eyes. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Remand is required until the outstanding eye claim is resolved. Accordingly, the case is REMANDED for the following action: 1. Schedule an examination to determine the nature and severity of visual field impairment. All necessary testing must be performed, and the results properly reported. This includes provision of a Goldmann chart of the visual field results. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal, to include entitlement to TDIU. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the remanded matters. See Kutscherousky v. West, 12 Vet. App. 369 (1999). All remanded claims must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs