Citation Nr: 21003384 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-19 664 DATE: January 21, 2021 ORDER Entitlement to service connection for sleep apnea with insomnia is granted. Entitlement to service connection for bilateral recurrent corneal erosion (previously including dry eye syndrome), to include as due to photorefractive keratectomy (PRK) is denied. Entitlement to service connection for corneal opacities, to include as due to PRK, is denied. Entitlement to a separate 20 percent rating for bilateral dry eye syndrome, to include as due to PRK, is granted. Entitlement to an initial rating in excess of 10 percent for bilateral glaucoma is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his sleep apnea with insomnia began in service. 2. The preponderance of the evidence of record is against finding that the Veteran has had recurrent corneal erosions at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had recurrent corneal opacities at any time during or approximate to the pendency of the claim. 4. The Veteran’s bilateral dry eye syndrome began in service following PRK surgery and results in pain, sore eyelids, tearing, and dry eyes. 5. The Veteran’s bilateral glaucoma is treated with continuous medication, results in bilateral visual acuity of 20/40 or better, and remaining visual fields of 46 to 60 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea with insomnia have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for bilateral recurrent corneal erosion (previously including dry eye syndrome) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for corneal opacities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to a separate 20 percent rating for bilateral dry eye syndrome have been met. 38 U.S.C. §§ 1115; 38 C.F.R. §§ 3.102, 3.303, 4.75, 4.76, 4.77, 4. 79, Diagnostic Code (DC) 6025. 5. The criteria for rating in excess of 10 percent for bilateral glaucoma have been met. 38 U.S.C. § 1115; 38 C.F.R. §§ 4.75, 4.76a, 4.77, 4.79 DC 6013, 6066, 6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from U.S. Navy from July 1994 to May 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2015 (glaucoma) and September 2015 (corneal erosion, corneal opacities) rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously before the Board in May 2019. The Board denied a claim of entitlement to an earlier effective date for the grant of entitlement to service connection for glaucoma. The Veteran’s claims for an increased rating for glaucoma, and entitlement to service connection for sleep apnea, corneal opacities, and corneal erosion were remanded for releases for private treatment records, a copy of 2015 eye chart, and additional examinations. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran and his representative have not explicitly raised the issue of entitlement to TDIU. His treatment records indicate he is employed, as such the Board does not find that the issue of TDIU has been reasonably raised by the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for sleep apnea with insomnia is granted. The Veteran argues that he developed a sleep disorder during service, later diagnosed as insomnia and sleep apnea. A June 20, 2018 Johns Hopkins record shows that the Veteran was seen for a new evaluation due to poor sleep quality. He reported difficulty falling asleep, awakening from sleep early, inability to fall back to sleep, teeth grinding in sleep, and excessive daytime sleepiness. On physical examination, he was noted to have thick tongue ridging, a short neck, and elongated soft palate. He was assessed with “other sleep apnea.” He was noted to have several risk factors for sleep apnea, so a sleep study was ordered. He was also noted to have multifactorial chronic insomnia. A June 26, 2018 Johns Hopkins included the Veteran’s report of difficulties with sleep for 20 years. At that time, he often worked night shifts and was deployed overseas, which significantly impaired his sleep schedule. He reported continued problems, with difficulty sleeping particularly on weekdays. He stated that “approximately 5-6 years ago” he saw a sleep specialist who conducted a sleep study to evaluate for possible apnea; however, the Veteran did not follow up and the results of the study were not explained to him. The Johns Hopkins physician noted that the results were “unknown.” His “non-worsening sleep issues fit criteria for an insomnia disorder (he has had symptoms for decades).” His trigger for waking up is primarily related to feeling hot. “Furthermore, due to his risk factors (jaw structure) and the fact that he primarily sleeps on his abdomen (cannot sleep on his back), there is concern for OSA.” A record of an unknown date showed a diagnosis of very mild positional OSA and snoring from sleep study. An August 31, 2018 Johns Hopkins record included the assessment of chronic insomnia that was multifactorial. A December 18, 2019 VA sleep apnea Disability Benefits Questionnaire included the diagnoses of diagnosed “very mild positional obstructive sleep apnea and snoring.” The Veteran described onset of his sleep apnea has “noticing changes in sleeping pattern in 1998 after returning from deployment where he worked various shifts (including graveyard shift).” He experienced daily insomnia and daytime sleepiness requiring him to take naps daily, and he “snored at night on occasion.” The Veteran used Ambien to treat his sleep disorder/insomnia. He did not use a CPAP machine for his OSA. The examiner cited a June 26, 2018 Johns Hopkins Center for Sleep study which diagnosed “very mild positional obstructive sleep apnea and snoring.” The examiner provided a negative nexus opinion noting that service treatment records did not show a diagnosis of OSA in service. The examiner reported the Veteran’s contention that he was seen by a sleep specialist and underwent a sleep study within 1 year after separation, “but available medical records do not provide any evidence of that sleep study” and available evidence diagnosed mild positional OSA in 2018. The examiner noted that the 2018 diagnosis was 10-years after separation from service. In a July 2020 statement, the Veteran argued his first evidence of sleep apnea was in November 2009, “a little over a year after active service.” He was assessed with hypersomnia with sleep apnea, unspecified by Dr. M.P. from Sleep Heart Sleep Center. He stated he tried to obtain his treatment records from Sleep Heart Sleep Center, but “they had an issue with [his] insurance company and it has been difficulty to get [his] medical record from them.” The Veteran also noted that he “worked rotating shift a majority of [his] active service and had difficulty sleeping for a majority of this service.” He explained that were no treatment records in service regarding his difficulty sleep because it was thought to be due to his “odd/nontraditional hours standing watch.” He stated that it was not until he separated from service and saw a sleep specialist that he “realized the symptoms [he] experienced while in service (i.e. waking up with dry mouth, waking up with headaches, sleeping for only 2-3 hours a night, having daytime sleepiness, ect.) was sleep apnea.” A July 2020 Johns Hopkins “Health Record Detail” included that the Veteran had an assessment of “hypersomnia with sleep apnea, unspecified” from November 6, 2009. Obstructive sleep apnea was assessed on April 22, 2020. The 2019 examiner provided a negative nexus opinion based on no in-service treatment or diagnosis, and no medical records prior to a diagnosis in 2018. The Veteran has credibly asserted that he visited a sleep specialist in November 2009 with complaints similar to those later diagnosed as insomnia and mild positional OSA. Resolving reasonable doubt in the Veteran’s favor, the Board finds that his obstructive sleep apnea with insomnia began during service. Entitlement to service connection is OSA with insomnia is warranted. Increased Rating 2. Bilateral recurrent corneal erosion (previously including dry eye syndrome) is denied. 3. Entitlement to service connection for corneal opacities is denied. 4. Entitlement to a separate 20 percent rating for bilateral dry eye syndrome is granted. 5. Entitlement to an initial rating in excess of 10 percent for bilateral glaucoma is denied. The Board will address the Veteran’s service connection eye claims and his increased eye rating claim in the same section. In addition to the eye treatment records applying to all claims, eye disability ratings for visual acuity and visual field impairment are limited to one rating and would not result in separate ratings. On the October 2020 Appellant’s brief, the representative noted the Veteran’s argument was that his corneal conditions manifested while on active duty and continued to impact his life. He also argued that his glaucoma impacted his ability to earn at a greater rate than the 10 percent minimum. The Veteran underwent PRK surgery on November 14, 2005. Following surgery, he had 1 x 2 mm abrasions to both corneas. By November 22, 2005, he had one large abrasion on the right eye with loose EPI at inferior edge. By November 29, 2005, 15 days post PRK, his left cornea exhibited no abnormalities, no corneal infiltrates, no edema. His right cornea exhibited no abrasion and the bandage contact lens removed. By December 12, 2005, his corneas exhibited no abnormalities, but very trace haze to both eyes. Premier Eye Center records from 2009 are in the claims file, but are difficult to read due to handwriting. A February 18, 2009 record showed an assessment of a corneal scar in both eyes secondary to PRK; two other diagnoses are too unclear. A March 7, 2009 record showed a diagnosis of conjunctivitis; unclear which eye. By April 4, 2009, he was noted to be glaucoma-suspect. A December 10, 2010 treatment record from Dr. D.B.G. included that the Veteran had blurred vision, pain, and tearing in his right eye. He reported that he had a foreign body sensation in his right eye since his PRK surgery. He was also seen for evaluation of glaucoma suspect. His uncorrected distance vision was 20/20-1 both eyes. On slit lamp evaluation his lacrimal meniscus was “increased.” Evaluation of his corneas showed: endothelium smooth and of normal appearance both eyes, epithelium intact left eye, stroma clear both eyes and epithelial irregularity without stain right eye. He was assessed with recurrent erosion right eye, and glaucoma suspect. The Veteran filed his claim for entitlement to service connection for glaucoma on October 14, 2013. The Veteran is currently service-connected for bilateral glaucoma only, and is seeking an increased rating for his glaucoma and service-connection for additional eye disabilities. 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. 15316 (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. Both the former and revised criteria indicate that a minimum 10 percent rating was warranted if continuous medication was required. Under the former criteria, DC 6013 instructed to evaluate pursuant to visual impairment due to open-angle glaucoma. Under the revised criteria, DC 6013 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye, which instructs to evaluate a condition based on visual impairment or incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. On January 13, 2015, the Veteran participated in a VA eye examination and was diagnosed with bilateral glaucoma. His history of PRK surgery and subsequent steroid treatment was described. Once his eyes healed from the PRK, he was taken off steroids. He was diagnosed with glaucoma in April 2012, and was followed as pre-glaucoma/glaucoma suspect prior to formal diagnosis. His corrected distance vision was 20/40 or better both eyes. He did not have diplopia on testing. External eye evaluation, including evaluation of corneas, was found to be normal. Internal eye examination showed abnormal cup to disc ratio. The Veteran had visual field defect in both eyes with loss of a visual field “superior and inferior nasal step OD, inferior nasal step OS.” There was no scotoma. He was assessed with bilateral POAG, being treated with Latanoprost. His visual impairment was noted to be due to his glaucoma. He had not had any incapacitating episodes in the prior 12 months. Under DC 6066, corrected distance visual acuity of 20/40 or better for both eyes warrants a noncompensable rating. The January 13, 2015 visual field test showed remaining right visual field was 428 degrees, with average concentric visual field contraction of 53.5 degrees. His left remaining visual field was 446 degrees, with average concentric visual field contraction of 55.75 degrees. Under DC 6080, visual field concentric contraction with remaining visual field of 46 to 60 degrees, bilateral, warrants a 10 percent rating. The electronic record also contains treatment records from Patapsco Eye MD from 2012 to 2016. Throughout those records his uncorrected distance vision was 20/40 or better bilaterally. An August 10, 2012 record noted that his corneas were as “intact epithelium, clear, stroma, normal endothelium.” He denied flashing lights, floaters, and pain. A November 21, 2012 record included that he was using Latanoprost and artificial tears. An October 29, 2013 record diagnosed POAG and tear film insufficiency. All records from 2012 to 2018 were reviewed, and none of them showed any cornea abnormalities or findings. On his April 2015 notice of disagreement, the Veteran stated he wanted a 30 percent rating for his glaucoma. The Veteran argued he was evaluated “as an elderly person who [contracted] glaucoma [versus] the fact that [he] got it due to PRK surgery which [he felt] was used to arrive at [his] current evaluation.” The Board notes that the rating criteria for glaucoma is the same whether it is caused by an in-service event or developed in service. In September 2015, the Veteran filed claims for service connection for acute conjunctivitis, recurrent corneal erosion, and corneal opacities, all secondary to his in-service PRK surgery. He submitted two abstracts in support of his claims. One was entitled symptoms of dry eye and recurrent erosion syndrome after refractive surgery. The abstract included that the conclusions of the study included that ocular dryness symptoms occurred commonly after PRK and LASIK. Symptoms suggestive of mild recurrent erosions included sharp pains, sensation of the eyelid sticking to the eyeball, and soreness of the eyelid to touch. The symptoms were noted to be “significantly more common, more severe, and more prolonged after PRK.” Another abstract, entitled “Cases review of Corneal opacification after photorefractive keratectomy (PRK)” included that corneal opacification after PRK usually resulted in decreased visual acuity, and decreased visual quality due to the photoactivation of some toxic substance in the eye. In some instances, microbial infection during epithelial healing. In his September 2015 notice of disagreement, the Veteran stated that following PRK he immediately developed “symptoms.” He also noted that he continued to have eyelids were sore to touch, and frequently had sharp pain/recurrent erosions. He stated he had been using artificial tears since his surgery, up to 10 times per day. He also reported seeing floaters (it was unclear if this statement referred to the past or a present symptom). A January 7, 2019 Wilmer Eye Institute record included diagnoses of POAG at a moderate stage and bilateral dry eyes. His Humphrey Visual Fields test was abnormal for his right eye, and within normal limits for his left. A December 17, 2019 record showed the same diagnoses, plus “bilateral corneal scars;” however, the treatment record did not include physical evaluation detailing corneal scars. He was on Latanoprost and artificial lubrication. A December 19, 2019 Eye Disability Benefits Questionnaire (DBQ) included the singular diagnosis of bilateral glaucoma. He was on Latanoprost for treatment of his glaucoma. His corrected distance vision 20/20 or better. He did not have diplopia. His slit lamp evaluation was “normal” with no findings related to his lids or cornea. His internal eye examination was normal except for findings of abnormal cup to disc ratios. He had abnormal visual fields, with concentric contraction of visual fields showing remaining right visual field was 398 degrees, with average concentric visual field contraction of 49.75 degrees. He had remaining left visual field of 436 degrees, with average concentric contraction of 54.5 degrees. He did not have visual field loss or scotoma. The examiner only filled out the glaucoma section. He had bilateral POAG treated with continuous medication (Latanoprost). His POAG was the cause of his visual impairment. The examiner found that the Veteran had not had any incapacitating episodes of glaucoma in the prior 12 months. In the remarks section, the examiner noted that there was “no evidence of cornea opacities or cornea erosions” during the examination. In an attached opinion, the examiner found that it was less likely than not (less than 50 percent likely) that the Veteran had corneal opacities/corneal ulcers/erosions due to his in-service PRK because there was “no evidence of cornea opacities. Corneas were normal.” Under DC 6066, corrected distance visual acuity of 20/40 or better for both eyes warrants a noncompensable rating. Under DC 6080, visual field concentric contraction with remaining visual field of 46 to 60 degrees, bilateral, warrants a 10 percent rating. A January 6, 2020 VA eye clinic record included the Veteran’s report of “no problems with vision, does not wear glasses; had PRK OU in 2005.” He was on Latanoprost drops for his glaucoma. His visual acuity without correction was 20/25 bilaterally. He was assessed with POAG, moderate stage and refractive error/presbyopia. Regarding his POAG, his Humphrey Visual Fields were noted to show normal left eye and abnormal right eye. In a July 2020 statement, the Veteran argued that he had been diagnosed with corneal erosions, dry eye syndrome, and other eye problems during the period on appeal. He also stated that “the doctors…treating [him] presently” had given him the “option for surgery to correct some of the aforementioned issues, to include tear duct surgery” which would indicate that these are current problems. Regarding his glaucoma, the Veteran was confused by the legal wording in the examiner’s positive opinion regarding his glaucoma (“at least as likely as not” is a positive opinion meaning at least 50 percent likely to be true). He noted that his eye pressures were in the glaucoma stage in service. The Board notes that he has been granted service-connection for glaucoma. The statement did not include any information on his symptoms or functional limitations due to glaucoma, as would relate to his increased rating claim. Regarding the claims of entitlement to service connection for corneal opacities and recurrent corneal erosion, the Board finds that service connection is not warranted. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of corneal opacities or recurrent corneal erosion, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, the Veteran’s eye symptoms have been associated with his glaucoma (visual impairment) and dry eye syndrome (sore eyelids, dry and tearing eyes, pain). There are no symptoms that have been associated with a corneal condition during the period on appeal. The Board notes that following his in-service PRK surgery the Veteran had corneal erosion, specifically with a large right corneal ulcer. Treatment records from 2009 (outlined above) appeared to show (difficult handwriting) that the Veteran had a corneal scar in both eyes secondary to PRK surgery and ulcer in late 2005. A December 2010 record showed right eye recurrent erosion. Following December 2010, there are no additional records which note corneal ulcer/corneal erosion/corneal opacities. Private treatment records from 2012 to 2016 included physical examination of the corneas without notation of abnormalities. The Veteran filed his claim of entitlement to service connection for glaucoma in October 2013. Treatment records from October 2012 onward do not show corneal abnormalities, except for a December 2019 record which noted corneal scars. However, the January 2019 record from the same private treatment provider did not show bilateral corneal scars, and the December 2019 record that noted bilateral cornea scars in the listed diagnoses, did not document findings related to the corneas on evaluation. Additionally, 2015 VA and 2019 fee-basis eye examinations, which were specifically looking for cornea abnormalities, did not find any scars/ulcers/erosions/opacities. For entitlement to service connection, a condition must be present during the period on appeal. Here, the Board finds that the preponderance of the evidence is against finding that the Veteran has had a corneal condition, including corneal erosions, ulcers, opacities, and scars during the period on appeal. The Board notes that post-PRK surgery corneal conditions would be rated under DC 6009, which rates based on visual impairment or incapacitating episodes. As noted above, ratings for various eye conditions where the disability is related to visual impairment or incapacitating episodes, would be provided as a single rating. Regarding the Veteran’s claim for a rating in excess of 10 percent for bilateral glaucoma, he has been on continuous medication for glaucoma during the entire period on appeal. A such, he meets the requirements for a minimum 10 percent rating for glaucoma for the entire period on appeal. The evidence does not show that a rating in excess of 10 percent for glaucoma is warranted based on visual acuity. The Veteran’s visual acuity has been 20/40 or better, warranting a noncompensable rating, for the entire period on appeal. The evidence does not show that a rating in excess of 10 percent for glaucoma is warranted based on visual field defect. The Veteran has concentric contraction of his visual fields due to glaucoma. The 2015 and 2019 examinations showed that the Veteran’s visual field contraction resulted in remaining visual field of 46 to 60 degrees. (Continued on the next page)   Additionally, the medical does not show, and lay statements have not indicated, that the Veteran’s glaucoma has resulted in incapacitating episodes in the prior 12 months. As the Veteran’s visual field contraction and visual acuity do not warrant a rating in excess of 10 percent, entitlement to a rating in excess of 10 percent for glaucoma is not warranted. The Board notes that the Veteran has been noted to have bilateral dry eye syndrome throughout the period on appeal. His dry eye complaints and use of artificial tears began in service, following his PRK surgery. His symptoms include complaints of pain, soreness to the eyelid, tearing, and dryness. Given the available records, and the Veteran’s credible complaints of lay-observable symptoms, the Board finds that a separate 20 percent rating is warranted under DC 6025, for bilateral involvement. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, Counsel 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.