Citation Nr: 21003149 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-36 247 DATE: January 19, 2021 ORDER A rating higher than 10 percent for left upper eyelid resection residuals is denied. A rating higher than 10 percent for exposure keratoconjunctivitis of the left eye from July 10, 2018, to October 16, 2020, is denied. A compensable rating for exposure keratoconjunctivitis of the left eye as of October 16, 2020 is denied. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran’s left upper eyelid resection residuals (also diagnosed as lagophthalmos) have been unilateral; he has had some decreased visual acuity that was correctable to 20/40 or better, and no impairments of visual fields or muscle function. 2. From July 10, 2018, to October 16, 2020, the Veteran’s exposure keratoconjunctivitis of the left eye resulted in less than three incapacitating episodes. 3. As of October 16, 2020, the Veteran’s exposure keratoconjunctivitis of the left eye has not resulted in any incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for left upper eyelid resection residuals have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Codes 6099-6021. 2. From July 10, 2018, to October 16, 2020, the criteria for a rating higher than 10 percent for exposure keratoconjunctivitis of the left eye were not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Code 6001. 3. As of October 16, 2020, the criteria for a compensable rating for exposure keratoconjunctivitis of the left eye have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Code 6001. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2004 to March 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which increased the disability ratings for left shin splint and status post C6 fracture, and denied increases for right shin splint, right ankle strain, and status post left upper eyelid resection. The Veteran appealed this rating decision with an August 2013 notice of disagreement. The RO issued a statement of the case in September 2014 and the Veteran perfected his appeal with a VA Form 9 later that month. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in September 2016. A transcript of the hearing is associated with the claims file. In November 2017, the Board remanded this case for further development. In November 2019, the Board granted increased ratings for right ankle strain and status post C6 fracture as of January 18, 2018; denied increased ratings for right shin splint, left shin splint, and status post C6 fracture prior to January 18, 2018; denied an extension of the temporary total rating for right ankle surgical convalescence; and a remanded the issue of an increased rating for left upper eyelid resection residuals. An October 2020 rating decision granted service connection for exposure keratoconjunctivitis left eye with a 10 percent rating effective July 10, 2018, and a noncompensable (0 percent) rating effective October 16, 2020. This resulted in a staged partial increase for the Veteran’s left eye disability under another diagnostic code. As this award does not encompass the entire appeals period and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Ratings 1. A rating higher than 10 percent for left upper eyelid resection residuals 2. A rating higher than 10 percent for exposure keratoconjunctivitis of the left eye prior to October 16, 2020 3. A compensable rating for exposure keratoconjunctivitis of the left eye as of October 16, 2020 The Veteran was originally granted service connection for status post left upper eyelid resection in an August 2010 rating decision. At that time, this disability was rated 10 percent effective March 24, 2010. The Veteran filed a claim for an increased rating in July 2012. During the pendency of this appeal, an October 2020 rating decision granted service connection for exposure keratoconjunctivitis left eye with a 10 percent rating effective July 10, 2018, and a noncompensable (0 percent) rating effective October 16, 2020. This resulted in a staged partial increase for the Veteran’s left eye disability under another diagnostic code. As the criteria for both diagnostic codes are based on the Veteran’s eye symptoms, they all will be addressed below. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran’s left upper eyelid reconstruction residuals are rated under hyphenated diagnostic code (DC) 6099-6021. His exposure keratoconjunctivitis is rated under DC 6001. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is “built up” with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being “99” for an unlisted condition. Id. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15,316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. The criteria for entropion under DC 6021 have remained the same. Unilateral entropion warrants a 10 percent rating and bilateral entropion warrants a 20 percent rating. 38 C.F.R. § 4.79, DC 6021. Under the former criteria, DC 6001 for keratopathy is rated under the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for Diagnostic Codes 6000 through 6009 instructed the rated to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Under the revised criteria, DC 6001 is rated under the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091. The criteria for visual impairment, including impairments of visual acuity, visual fields, and/or muscle function, have remained unchanged. Impaired visual acuity is rated under diagnostic codes 6061-6066 based on the best corrected distance vision. 38 C.F.R. §§ 4.76, 4.79. Impairment of visual fields are rated under DC 6080-6081 based on the average concentric contraction of the visual field of each eye; asymmetric impairments are converted to their visual acuity equivalents. 38 C.F.R. §§ 4.77, 4.79. Impaired muscle function is rated under DC 6090-6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.78, 4.79. A July 2013 VA scars disability benefits questionnaire (DBQ) noted three scars associated with the Veteran’s upper eyelid surgery. None of these scars were painful or unstable. These scars measured 4 cm by 1 cm, 4 cm by 1.25 cm, and 4 cm by 1 cm. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue associated with any of these scars. None of these scars resulted in limitation of function. These scars did not impact the Veteran’s ability to work. A November 2013 VA treatment record notes the Veteran’s complaints of eyelashes irritating his eye for six years. He had epilated his own eyelashes several time, which provided temporary comfort, but he had some problems with ingrown hairs. He denied vision changes or other complaints. The Veteran was also diagnosed with refractive error. His corrected visual acuity was 20/40 bilaterally in his existing prescription, but a new prescription resulted in 20/20 vision bilaterally. His pupils were round and reactive to light with no relative afferent papillary defect. He had full motility and normal confrontational visual fields. Electroepilation treatment was performed in the clinic. A December 2015 VA treatment record noted the Veteran’s complaints of intermittent blurriness of the left eye associated with mild redness, irritation, and occasional eye drainage. the Veteran’s visual acuity was correctable to 20/20 bilaterally. His pupils were round and reactive to light with no relative afferent papillary defect. He had full motility and normal confrontational visual fields. He had six white cilia near lid notch touching the globe. The Veteran had moderately severe swelling of the left upper lid with injection of 1 cc with 30g needle into lid margin at central notch which caused a relative entropion of lashes. This resolved significantly with cold pack over saline gauze placed over the left upper lid. Eversion of the left upper lid revealed two vertically linear scars arising from the lid margin notches. The tarsus between the two vertical scars was about 5mm but temporally and nasally the tarsus is 2-3mm high. The Veteran was scheduled for left upper eyelid surgery in July 2016 but cancelled and rescheduled for a year later. At his September 2016 hearing, the Veteran reported that his eyelashes went toward his eye, making his vision blurry. He treated this by pulling them out himself, or having VA burn them off a few times. He had been scheduled for surgery to correct this but had to postpone it. July 2017 and September 2017 VA treatment records noted scarring/disfigurement of the left upper lid, specifically an irregular border with scar tissue and distichiasis. Multiple clear cilia nearing the left cornea in central notch, but no cilia at temporal notch with thicker skin centrally between two notches. There were significant papillary changes inferior tarsus bilaterally, and bilateral giant papillary conjunctivitis. He had rapid tear breakup time without staining bilaterally. Electrolysis had failed and the Veteran was now ready for full thickness excision of lid with realignment of eyelid margin. His visual acuity without correction was 20/20 in the right and 20/25 in the left with pinhole 20/20. A December 2017 VA treatment record noted that the Veteran’s left upper lid was healing well. There was no more irritation or feeling like his lashes were rubbing his eyes. He treated his disability with medicated eye drops. His visual acuity was corrected to 20/20 bilaterally. His pupils were round and reactive to light with no relative afferent papillary defect. There was an area of scarring on the left upper lid with a few short in turned lashes and one lash underneath the skin well healed with slight mildly central notch at the margin of the left eye. There was trace injection of the left conjunctiva. He had bilateral giant papillary conjunctivitis. Three cilia were removed that day. A May 2018 private treatment record noted a disfigured left upper lid with scarring from reconstruction. There was also redness and mild swelling, mild strabismus, left upper lid entropion, residual scarring on forehead, and possible brow ptosis. The Veteran treated his eye disability with medicated eye drops. On July 10, 2018, the Veteran underwent left upper lid reconstruction surgery for left upper eyelid complex deformity with irregular margin scarring, poor orbicularis and levator function, trichiasis, distichiasis, and tarsal warpage entropion; left lower eyelid retraction and lagophthalmos; and severe left corneal abrasion and exposure keratopathy. One week later, the Veteran reported tearing at work. He had moderate swelling and bruising, a pseudo blink, and visible chemosis. The sutures were removed, and the private physician noted that the Veteran was healing well at this stage. An August 2018 private treatment record noted the Veteran’s complaints of continued dryness, particularly in the morning, and tearing. The incision was healing well, and the stitch was noticeable. The September 2018 VA eye DBQ noted visual acuity of 20/40 in both near and distance bilaterally. The Veteran’s pupils were round and reactive to light. He did not have anatomical loss, light perception only, extremely poor vision, or blindness in either eye. He did not have a corneal irregularity that results in severe irregular astigmatism. He did not have diplopia. An internal eye exam was normal. Externally, the Veteran had a scar on the left upper lid margin. He did not have a documented visual field defect. In the prior twelve months, he had not had any incapacitating episodes attributable to an eye condition. The Veteran’s eye disability did not impact his ability to work. The Veteran’s left upper eyelid scar affected the muscle. It was not classified as a dermatological scar or a skin scar, as it involved tarsal cartilage and functional eyelid closure. It was not possible to describe it in terms of length in centimeters or area of involvement and any attempt to measure the area would return a small fraction of a centimeter. A March 2019 private treatment record notes the Veteran’s complaint that his eyelashes were starting to bother him again. He had constant tearing, left eye worse than right. An October 16, 2020 eye DBQ diagnosed the Veteran with lagophthalmos of the left upper eyelid and exposure keratoconjunctivitis of the left eye. His uncorrected distance vision was 20/70 bilaterally, correct to 20/20 or better in the right eye and 20/40 in the left eye. His uncorrected and corrected near vision was 20/20 or better in the right eye and 20/40 in the left eye. The Veteran’s pupils were round and reactive to light. He did not have anatomical loss, light perception only, extremely poor vision, or blindness in either eye. He did not have a corneal irregularity that results in severe irregular astigmatism. He did not have diplopia. An internal eye exam was normal. Externally, the Veteran had a left upper lid notch and lagophthalmos with lid closure and 1+ punctate epithelial erosions on the left cornea. He did not have a documented visual field defect. To the extent that the Veteran had any visual impairment, this was attributable to exposure keratoconjunctivitis. In the prior twelve months, he had not had any incapacitating episodes attributable to an eye condition. The Veteran’s eye disability did not impact his ability to work. There were no finding, signs or symptoms to support a diagnosis of strabismus and/or visual distortion despite the use of lubricants. The Veteran’s claimed condition of corneal abrasion had resolved. The Veteran had lagophthalmos (incomplete closure of the eyelid) secondary to irregular anatomy of the eyelid from a prior trauma and subsequent surgeries. This technically was the same diagnosis as the established diagnosis of status post left upper eyelid resection, but the examiner felt this term was a more accurate diagnosis for his condition. Due to the incomplete closure of the eyelid in the left eye, the eye had secondary exposure keratopathy. Based on the above, for the entire appeals period, the Veteran’s left upper eyelid resection residuals has been unilateral, which is consistent with the current 10 percent rating. See 38 C.F.R. § 4.79, DC 6021. While more recent records suggest that lagophthalmos is a more accurate diagnosis, the Board notes that the criteria for lagophthalmos under DC 6022 also provides a 10 percent rating for unilateral involvement and a 20 percent rating for bilateral involvement. Therefore, a higher rating is not available under DC 6022 either. As such, a rating higher than 10 percent for the Veteran’s left upper eyelid resection residuals is not warranted and to that extent, his appeal is denied. Likewise, throughout the pendency of the appeal, the Veteran has not had a compensable level of visual impairment. While some decreased visual acuity has been noted, it has always been correctable to 20/40 or better. There is no showing of impairments of visual fields or muscle function. As such, a compensable rating based on visual impairment is not warranted. (Continued on the next page)   The Veteran was diagnosed with corneal abrasion and exposure keratoconjunctivitis at the time of his July 10, 2018 surgery. As noted above, the record does not show a compensable level of visual impairment. The remaining question is whether the Veteran’s left eye disability resulted in incapacitating episodes. To this end, both the September 2018 and October 2020 DBQs found that the Veteran had not had any incapacitating episodes during the prior twelve-month period. Nevertheless, the RO awarded a separate 10 percent rating from July 10, 2018, to October 16, 2020 based on incapacitating episodes related to exposure keratoconjunctivitis, which was first noted at the time of the July 2018 surgery. Under the revised criteria, this 10 percent rating reflects documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months and an incapacitating episode is defined as an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. See 38 C.F.R. § 4.79, DC 6001, Note (1). During this period, the Veteran sought private treatment for this condition three times in the two years following his July 2018 surgery. These visits do not reflect systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. By the time of his October 16, 2020, DBQ, the Veteran’s corneal abrasion had resolved. Based on the above, the Board does not find evidence of three or more incapacitating episodes within a twelve-month period from July 10, 2018, to October 16, 2020, and there is no evidence of any incapacitating episodes since that time. Therefore, neither a rating higher that 10 percent for exposure keratoconjunctivitis of the left eye from July 10, 2018, to October 16, 2020, nor a compensable rating thereafter, is warranted based on incapacitating episodes and to that extent the Veteran’s appeal is denied. The Board has also considered whether a separate compensable rating is warranted for the Veteran’s associated scars. While several records refer to a deformity, the eight characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: (1) Scar is 5 or more inches (13 or more cm.) in length; (2) Scar is at least one-quarter inch (0.6 cm.) wide at the widest part; (3) Surface contour of scar is elevated or depressed on palpation; (4) Scar is adherent to underlying tissue; (5) Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and (8) Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, DC 7800. The small size of these scars rules out most of the characteristics of disfigurement. The July 2013 VA scars DBQ specifically found none of these scars were painful or unstable and there was no elevation, depression, or adherence to underlying tissue. Therefore, none of the characteristics of disfigurement are shown. See id. Furthermore, these scars are not shown to be painful or unstable. See DC 7804. Therefore, a separate compensable rating for associated scars is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck 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.