Citation Nr: 1813093 Decision Date: 03/01/18 Archive Date: 03/13/18 DOCKET NO. 18-00 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial compensable rating for a bilateral eye disability, other than diabetic retinopathy with pseudophakia status post cataract extraction, service-connected as dry eye syndrome, blepharitis, and corneal arcus. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1960 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for a bilateral eye disability, other than diabetic retinopathy with pseudophakia status post cataract extraction, with an initial noncompensable rating. The July 2016 described the newly service-connected disability as dry eye syndrome, blepharitis, and corneal arcus, based on July 2016 VA examination report in which the author identified these conditions as being incurred during active service. The Veteran appealed the initial rating assigned for the newly service-connected disability. In his initial October 2016 notice of disagreement (NOD), the Veteran indicated he was seeking a 10 to 20 percent rating for the disability. In a subsequently received February 2017 NOD, the Veteran's representative indicated the Veteran wished to seek the highest rating possible for the disability, to include a total disability rating based on individual unemployability (TDIU). The Board notes it remanded the issue of entitlement to TDIU to the Agency of Original Jurisdiction (AOJ) as an element of the appeal of the initial rating assigned for diabetes mellitus, type II, pursuant to a December 2016 order of the United States Court of Appeals for Veterans Claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes the effective date of service connection for diabetes mellitus, type II, predates the effective date of service connection for dry eye syndrome, blepharitis, and corneal arcus. Thus, the Board finds it is more advantageous and efficient for the Veteran for the general TDIU claimed raised under Rice to be considered as an element of that appeal; however, the Board will address whether the service-connected dry eye syndrome, blepharitis, and corneal arcus warrants TDIU standing alone pursuant to the relevant case law. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The service-connected dry eye syndrome, blepharitis, and corneal arcus have not resulted in loss of visual acuity or visual field. 2. The functional impairment resulting from the Veteran's dry eye syndrome has been analogous to a bilateral disorder of the lacrimal apparatus since February 24, 2010. 3. The functional impairment resulting from the Veteran's blepharitis has been analogous to active chronic conjunctivitis since February 24, 2010. 4. The Veteran's corneal arcus has not resulted in any disabling effects during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating under Diagnostic Code 6025 for the functional impairment resulting from dry eye syndrome have been since February 24, 2010. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.79, Diagnostic Code 6025 (2017). 2. The criteria for a 10 percent rating under Diagnostic Code 6018 for the functional impairment resulting from blepharitis have been since February 24, 2010. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.79, Diagnostic Code 6018 (2017). 3. The criteria for a compensable rating for corneal arcus have not been met at any point in the appeal period. U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.79, Diagnostic Codes 6000-6091. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Here, the evidence establishes the Veteran's service-connected dry eye syndrome, blepharitis, and corneal arcus are not the type of eye disability that results in loss of visual acuity or visual field. Rather, the disability causes redness and itchiness in his eyes that requirement treatment with prescription medication (dry eye syndrome), secretions that require warm compress for removal (blepharitis), and superficial changes to the appearance of his corneas (corneal arcus). Although the conditions have been categorized as one disability for the purpose of establishing service connection, the Board finds the conditions are separate with each condition resulting in specific manifestations, some of which cause functional impairment. The Board will discuss each condition separately in its analysis of the Veteran's appeal of the initial rating assigned. The Board will not discuss the disabling effects of diabetic retinopathy with pseudophakia status post cataract extraction in this decision, as the rating assigned for this disability was addressed in the Board's October 2015 decision. The disability characterized as a bilateral eye disability, other than diabetic retinopathy with pseudophakia status post cataract extraction, to include dry eye syndrome, blepharitis, and corneal arcus, is currently rated by analogy under Diagnostic Code 6025. Diagnostic Code 6025 provides the rating criteria for disorders of the lacrimal apparatus and primarily relates to dry eye syndrome in the Veteran's case. Under Diagnostic Code 6023, a 20 percent rating is assigned for a bilateral disorder of the lacrimal apparatus, and 10 percent rating is assigned for a unilateral disorder of the lacrimal apparatus. See 38 C.F.R. § 4.79, Diagnostic Code 6025. The VA examination reports of record establish the Veteran has a bilateral disorder of the lacrimal apparatus. The AOJ determined a noncompensable rating was warranted under Diagnostic Code 6025 in the Veteran's case based on a VA directive that indicates dry eye syndrome that results in minimal symptomatology and requires only treatment by non-prescription eye drops typically warrants a noncompensable rating. Yet, VA treatment records indicate the Veteran has severe redness and itchiness as result of dry eye syndrome that requires prescription eye drops. Thus, the Board finds a 20 percent rating is warranted under Diagnostic Code 6025 for the functional impairment resulting from dry eye syndrome, effective February 24, 2010. The Board notes this is the highest schedular rating available for a bilateral disorder of the lacrimal apparatus. The Veteran also asserts he should be compensated for bilateral eye secretions that require a warm compress for removal every morning when he wakes up. VA examiners have attributed this symptomatology to blepharitis, a chronic inflammation of the eyelids. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 225 (32d ed. 2012). Diagnostic Code 6018, which provides the rating criteria for chronic conjunctivitis, provides a 10 percent rating for objective findings, such a red, thick conjunctivae, mucous secretion or similar manifestations. The Board finds a 10 percent rating is warranted under Diagnostic Code 6018 for the functional impairment resulting from blepharitis, effective February 24, 2010. This is the highest rating available under Diagnostic Code 6018. The Board notes Diagnostic Code 6017 provides a higher 30 percent rating for trachomatous conjunctivitis that results in visual impairment; however, a June 2017 VA examiner reported the Veteran does not have trachomatous conjunctivitis, and there is no evidence of visual impairment as a result of blepharitis. Thus, further consideration under Diagnostic Code 6017 is not warranted. The Veteran's service-connected bilateral eye disability, other than diabetic retinopathy with pseudophakia status post cataract extraction, also encompasses corneal arcus, a white or gray opaque ring in the corneal margin. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 127 (32d ed. 2012). VA examiners have indicated there is no functional impairment resulting from corneal arcus, as it is solely a superficial change to the appearance of the Veteran's corneas. VA examiners have noted the Veteran's corneal condition is not manifest by scarring, disfigurement, or any other compensable symptomatology. Thus, the Board finds a separate rating for this condition is not warranted. The Board notes the Veteran's representative has raised the issue of TDIU in the context of this appeal. As explained in the introduction, the Board will limit its analysis of TDIU in this decision to whether the service-connected dry eye syndrome, blepharitis, and corneal arcus warrants TDIU standing alone. Initially, the Board notes the combined rating for this disability does not meet the schedular percentage requirements for TDIU standing alone. 38 C.F.R. § 4.16(a). Although the Board is prohibited from assigning a TDIU on an extra-schedular basis in the first instance, it must adjudicate whether referral to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R.§ 4.16(b) is warranted. See Bowling v. Principi, 15 Vet. App. 1 (2001). In this instance, the Board finds referral is not warranted because the preponderance of evidence is against a finding that the service-connected dry eye syndrome, blepharitis, and corneal arcus has any discernable impact on the Veteran's ability to work. VA examiners have reported this disability does not impact the Veteran's ability to work. There is no indication from the record that there is any functional impairment that was not considered by the VA examiners who have reached this conclusion. Thus, the Board finds further consideration of TDIU is not warranted for the service-connected dry eye syndrome, blepharitis, and corneal arcus standing alone, and, to that extent, the appeal is denied. In sum, the Board finds the 20 percent rating assigned under Diagnostic Code 6025 and the 10 percent rating assigned under Diagnostic Code 6018, both effective February 24, 2010, are sufficient to compensate the Veteran for the functional impairment resulting from the bilateral eye disability, other than diabetic retinopathy with pseudophakia status post cataract extraction, service-connected as dry eye syndrome, blepharitis, and corneal arcus. The 20 percent rating under Diagnostic Code 6025 compensates the Veteran for the redness and itchiness he experiences as a result of dry eye syndrome. The 10 percent rating under Diagnostic Code 6018 compensates him for his bilateral eye secretions. The Board finds the slight color change to his margin of his corneas is not compensable because it has no meaningful impact on his earning capacity. There is no evidence the Veteran experiences any additional symptomatology as a result of his bilateral eye disability, other than diabetic retinopathy with pseudophakia status post cataract extraction, service-connected as dry eye syndrome, blepharitis, and corneal arcus. Nevertheless, the Board finds a higher initial rating is warranted in this case with a 20 percent rating under Diagnostic Code 6025 and a 10 percent rating under Diagnostic Code 6018, both effective February 24, 2010, and, to that extent, the Veteran's appeal is granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 20 percent rating under Diagnostic Code 6025, effective February 24, 2010, for the functional impairment resulting from dry eye syndrome is granted. Entitlement to a 10 percent rating under Diagnostic Code 6018, effective February 24, 2010, for the functional impairment resulting from blepharitis is granted. Entitlement to a compensable rating for corneal arcus is denied. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs