Citation Nr: 21066303 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-28 274 DATE: October 29, 2021 ORDER Entitlement to an initial compensable disability rating for service-connected bilateral conjunctivitis and photophobia with iritis and uveitis is denied. REMANDED Entitlement to service connection for a bilateral hand disability, to include as secondary to Reiter's Syndrome, is remanded. Entitlement to service connection for a left foot disability, to include as secondary to Reiter's Syndrome, is remanded. FINDING OF FACT The Veteran's bilateral conjunctivitis and photophobia with iritis and uveitis have not manifest with vision impairment or incapacitating episodes. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral conjunctivitis and photophobia with iritis and uveitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.20, 4.75-4.79, Diagnostic Codes 6018-6066. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Navy from October 1972 to April 1974. These matters are on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This case was most recently before the Board in April 2020, at which time the issues on appeal were remanded for additional development. The issues have since returned to the Board for appellate consideration. Entitlement to an initial compensable disability rating for service-connected bilateral conjunctivitis and photophobia with iritis and uveitis. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In this case, the Veteran seeks a higher rating for his service-connected bilateral conjunctivitis and photophobia with iritis and uveitis, for which he has been in receipt of a noncompensable (0 percent) rating for the entire period on appeal. 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). 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 final rule went into effect May 13, 2018. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. Regarding visual field and muscle function examinations, the Board notes that use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Under Diagnostic Code 6018, noncompensable evaluation is warranted for inactive chronic conjunctivitis, which is evaluated based on residuals of the condition, such as visual impairment and disfigurement. A 10 percent evaluation is warranted for active chronic conjunctivitis with objective findings of symptoms such as red, thick conjunctivae or mucous secretion. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. 38 C.F.R. § 4.75(b). Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Visual impairment may also be rated based on impairment of visual field (Diagnostic Code 6080) and impairment of muscle function (Diagnostic Code 6090). Additional ratings may also be warranted for incapacitating episodes. However, as discussed below, the evidence does not show that the Veteran has had incapacitating episodes or visual field defects due to her service-connected conjunctivitis and blepharitis with meibomianitis. The Veteran can also be evaluated under Diagnostic Code 7800 for disfigurement, although the medical evidence of record does not reveal that this is for application under the facts of this particular case. Turning to the evidence, the Veteran was afforded a VA eye examination in connection with his claim in October 2014, during which he was diagnosed with bilateral photophobia and cataracts. Uncorrected distance visual acuity was 20/40 or better in both eyes; uncorrected near visual acuity was 20/70 in both eyes; and corrected and near distance visual acuity was 20/40 or better in both eyes. The Veteran did not have a visual field defect or condition that may result in a visual field defect. The examiner indicated that the Veteran's conjunctivitis affected both eyes but was inactive, though vision was affected when flare-ups occur. The examiner indicated that any visual impairment was attributable to cataracts, which caused a "slight decrease in clarity." Of iritis and uveitis, the examiner wrote that the conditions were not presently active, but that onset of symptoms of the Veteran's Reiter's syndrome caused loss of acuity for a four-month period. There was no scarring or disfigurement attributable to any eye condition, and the Veteran had had no incapacitating episodes attributable to any eye condition during the past 12 months. Regarding functional impairment, the examiner wrote that during flare-ups of ocular manifestations of Reiter's syndrome, acuity was compromised, affecting all daily activities. The Veteran was afforded another VA eye examination in September 2020. The examiner diagnosed bilateral nuclear sclerosis, status post posterior synechia, and contraction of a visual field. The Veteran reported severe vision impairment and photophobia while on active duty in 1974. He reported that it lasted four months at the time, but that current symptoms included bouts of conjunctivitis and uveitis/iritis "[e]very few months." Uncorrected distance visual acuity was 20/50 in the right eye and 20/40 in the left eye; corrected distance visual acuity was 20/40 in both eyes; uncorrected near visual acuity was 20/40 in the right eye and 20/50 in the left eye; and corrected near visual acuity was 20/40 in both eyes. Visual field testing was performed and showed contraction of a visual field; however, in the remarks section, the examiner wrote that the visual field contraction was separate from and unrelated to the Veteran's service-connected condition. The examiner indicated that visual impairment could be attributable to preoperative cataracts in both of the Veteran's eyes. There was no scarring or disfigurement attributable to any eye condition, nor had the Veteran had any incapacitating episodes attributable to an eye condition during the past 12 months. The examiner wrote that the Veteran's bilateral conjunctivitis and photophobia with iritis and uveitis diagnosis was changed to iritis and uveitis, and that it was quiescent and not detected on examination. Regarding functional impact, the examiner wrote that the Veteran would have difficulty working when experiencing a flare up of his uveitis/iritis/conjunctivitis. VA treatment records show the Veteran reported intermittent problems with dry eyes during a November 2014 rheumatology consultation. A November 2014 optometry consultation report notes evidence of chronic uveitis but no current inflammation. The optometrist also noted the presence of early age-related cataracts in both eyes. A February 2020 treatment note indicates that the Veteran had no recent eye inflammation. VA treatment records are otherwise silent for reports of or treatment for an eye condition, to include flare-ups of conjunctivitis and photophobia with iritis and uveitis. Overall, after careful review of the evidence of record, the Board finds that the evidence does not warrant assigning an increased rating for the Veteran's service-connected conjunctivitis and photophobia with iritis and uveitis at any point during the period on appeal. First, the medical evidence does not show that the Veteran has had visual impairment attributable to his service-connected disability. While the September 2020 VA examination documented a visual field defect, the examiner indicated that it was not attributable to his service-connected conjunctivitis and photophobia with iritis and uveitis. Instead, in the same report, the examiner attributed the Veteran's visual impairment to preoperative cataracts, for which service connection is not in effect. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Additionally, the evidence does not show that the Veteran has complained of or sought treatment for flare-ups or incapacitating episodes related to any eye condition during the period on appeal, and there is no evidence of scarring or disfigurement attributable to an eye condition. Therefore, based on the foregoing, the Veteran's claim for a compensable rating must be denied. REASONS FOR REMAND At the outset, the Board finds that remand is warranted to notify the Veteran of the unavailability of certain VA treatment records that could potentially be relevant to his service connection claims. Pursuant to the Board's April 2020 remand instructions, the RO attempted to obtain VA treatment records from prior to February 2014 but eventually determined that the records were unavailable. Unfortunately, the RO did not notify the Veteran of the unavailability of these records in accordance with 38 C.F.R. § 3.159(e). Under that regulation, if continued efforts to obtain Federal records reveal that it is reasonably certain they do not exist or that further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. 38 C.F.R. § 3.159(e). No such notice was provided to the Veteran in this matter. Accordingly, the Board finds that remand is warranted to inform the Veteran of unavailability of VA treatment records prior to February 2014 pursuant to 38 C.F.R. § 3.159(e), and provide him the opportunity to provide a copy of the records to VA. 1. Entitlement to service connection for a bilateral hand disability is remanded. 2. Entitlement to service connection for a left foot disability is remanded. In September 2020, in accordance with the Board's April 2020 remand instructions, the Veteran was afforded VA examinations concerning the nature and etiology of his claimed bilateral hand and left foot disabilities, which he has attributed to Reiter's Syndrome, a type of inflammatory arthritis for which he is service connected. He has consistently reported that he has experienced widespread joint pain related to Reiter's Syndrome "off and on" since discharge in 1974. The September 2020 examination reports documented degenerative or traumatic arthritis in both hands and the left foot. In accompanying opinions, the examiner determined that the Veteran's bilateral hand and left foot disabilities were not caused or aggravated by his service-connected Reiter's Syndrome. She explained that while Reiter's Syndrome can be "recurrent and chronic," available records did not establish that the Veteran ever suffered symptoms of Reiter's Syndrome in the left foot or hands, and the degenerative changes shown on current imaging studies were inconsistent with findings of arthritic changes from Reiter's Syndrome. While this seems to indicate that the arthritic changes of the hands and left foot might not be Reiter's Syndrome, the opinions do not adequately answer the question of whether they could have been caused or aggravated by Reiter's Syndrome. Therefore, remand is warranted to obtain addendum opinions that adequately address the extent to which the arthritic changes of the Veteran's bilateral hands and left foot were caused or aggravated by his service-connected Reiter's Syndrome. The matters are REMANDED for the following actions: 1. Notify the Veteran of the unavailability of VA treatment records prior to February 2014 pursuant to 38 C.F.R. § 3.159(e), and ensure he has an opportunity to respond. Obtain any outstanding VA or private treatment records. 2. Then, obtain addendum opinions concerning the etiology of the Veteran's currently diagnosed bilateral hand and left foot disabilities. The need for another examination is left to the discretion of the practitioner providing the opinions. Following a review of the claims file, including this Remand, and examination of the Veteran, the examiner is asked to address the following questions for EACH DISABILITY: (a.) Is it at least as likely as not that the Veteran's bilateral hand and left foot disabilities were caused by his service-connected Reiter's syndrome? (b.) Is it at least as likely as not that that the Veteran's bilateral hand and left foot disabilities were aggravated by service-connected Reiter's syndrome? The examiner must provide separate findings and rationales relating to causation and aggravation. The examiner is advised that secondary service connection does not require permanent worsening of the condition and requires considering whether there has been any worsening, no matter how incremental, even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (Continued on the next page) A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.