Citation Nr: A21017164 Decision Date: 10/23/21 Archive Date: 10/23/21 DOCKET NO. 200811-103046 DATE: October 23, 2021 ORDER Entitlement to an initial 20 percent disability rating for bilateral lagophthalmos with dry eye syndrome is granted. REMANDED Entitlement to a separate compensable disability rating for bilateral exophthalmos is remanded. FINDING OF FACT The evidence shows the Veteran has been diagnosed with bilateral lagophthalmos during the entire period on appeal. CONCLUSION OF LAW The criteria for a 20 percent rating, but no greater, for lagophthalmos with dry eye syndrome have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.79, Diagnostic Code 6022. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty with the United States Army from June 1980 to December 2001. He had overseas service in the Southwest Asia theater of operations during the Persian Gulf War and is a recipient of the Bronze Star Medal, among other decorations and awards. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in various sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). See also 38 C.F.R. § 19.2 (2019). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. In this case, the rating decision on appeal was issued in July 2020 and constitutes an initial decision; therefore, the AMA applies. In his August 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Entitlement to an initial 20 percent disability rating for bilateral lagophthalmos with dry eye syndrome Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran has appealed the noncompensable rating assigned for bilateral dry eye syndrome, exophthalmos, and lagophthalmos in the July 2020 rating decision on appeal. As discussed in the remand section below, the Board is remanding the issue of entitlement to a separate compensable rating for bilateral exophthalmos but finds that a 20 percent rating is warranted for bilateral lagophthalmos under Diagnostic Code 6022. The Veteran has complained of lagophthalmos throughout the period on appeal, and multiple VA eye examination reports from throughout the period show he has been diagnosed with bilateral lagophthalmos. Diagnostic Code 6022 provides for a 20 percent rating for bilateral lagophthalmos. A rating of 20 percent is the highest schedular rating available under that Diagnostic Code. As the evidence indicates that the Veteran's condition is bilateral, the Board finds that a 20 percent rating is warranted. The Board has considered whether a higher or separate rating is warranted for dry eyes under Diagnostic Code 6025 but finds that it is not. Diagnostic Code 6025 applies to disorders of the lacrimal apparatus and provides for a 20 percent rating where there is bilateral involvement. Here, the Veteran has complained of dry eyes throughout the period on appeal. He has reported, and the medical evidence reflects, that he has used eye drops, ointment, and baby shampoo to treat his symptoms. However, although the Veteran has dry eyes, no VA examiner has indicated that the cause of that symptom is a disorder of the lacrimal apparatus. Importantly, as established during VA examination, dry eyes are also a symptom of lagophthalmos. Therefore, the Board finds that a separate rating is not warranted under Diagnostic Code 6025 and notes that the symptom of dry eyes is already contemplated by the rating under Diagnostic Code 6022. REASONS FOR REMAND Entitlement to a separate disability rating for bilateral exophthalmos is remanded. The Veteran contends that his service-connected bilateral exophthalmos should be awarded a separate increased rating based on disfigurement. Specifically, he has requested a disability rating based on asymmetry of the eyes that he attributes to his exophthalmos. Unfortunately, he was never afforded a VA examination to address any symptoms of disfigurement, including asymmetry, associated with his disability. The Board finds that this constitutes a pre-decisional duty to assist error, and that remand is therefore warranted to schedule the Veteran for a VA examination to determine the extent and severity of any disfigurement attributable to his service-connected bilateral exophthalmos. (Continued on the next page) The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of any disfigurement of the head, face, or neck attributable to bilateral exophthalmos. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the applicable rating criteria (Diagnostic Code 7800). L. CHU 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.