Citation Nr: 21067797
Decision Date: 11/05/21	Archive Date: 11/05/21

DOCKET NO. 16-29 173
DATE: November 5, 2021

ORDER

Entitlement to an increased rating of 60 percent for cutaneous sarcoidosis with post-inflammatory hyperpigmentation beginning August 27, 2007 is granted.

Entitlement to an increased rating of 30 percent beginning March 9, 2006, but no earlier, for sarcoidosis is granted; however, entitlement to a rating higher than 30 percent is denied.

Entitlement to service connection for obstructive sleep apnea (OSA) is granted.

Entitlement to service connection for ocular herpes is granted.

Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted.

Entitlement to a compensable rating prior to September 4, 2019 is denied; however, a higher 20 percent rating is warranted thereafter for corneal scarring of left eye with bilateral dry eyes.

FINDINGS OF FACT

1. Beginning August 27, 2007, the Veteran required constant systemic therapy, to include corticosteroids to treat his cutaneous sarcoidosis with post-inflammatory hyperpigmentation.

2. Beginning March 9, 2006, the Veteran's sarcoidosis resulted in pulmonary involvement with persistent symptoms requiring chronic low dose maintenance.

3. The Veteran's OSA is aggravated beyond its natural progression by his service-connected sarcoidosis.

4. The Veteran's ocular herpes began during active service.

5. The Veteran's GERD is proximately due to his service-connected sarcoidosis.

6. Beginning September 4, 2019, the Veteran experienced an incapacitating episode related to his corneal scarring of the left eye with dry eyes that require him to attend three treatment visits within a year.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an increased rating of 60 percent for cutaneous sarcoidosis with post-inflammatory hyperpigmentation beginning August 27, 2007 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7806.

2. The criteria for entitlement to an increased rating of 30 percent sarcoidosis beginning March 9, 2006 have been met; however, the criteria for a rating higher than 30 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.96, 4.97, DC 6846-6600.

3. The criteria for service connection for OSA as secondary to sarcoidosis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

4. The criteria for entitlement to service connection for ocular herpes have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria for entitlement to a compensable rating prior to September 4, 2019 have not been met; however, the criteria for a higher 20 percent rating thereafter for corneal scarring of left eye with dry eyes have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1-4.16,4.31, 4.75-4.79, DCs 6006, 6066.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably as a United States Marine from September 1986 to June 1993. This matter originates from an October 2011 rating decision. A hearing was held in September 2019 with the undersigned Veterans Law Judge (VLJ) and a transcript has been associated with the record.

1. Entitlement to an increased rating of 60 percent for cutaneous sarcoidosis with post-inflammatory hyperpigmentation beginning August 27, 2007 is granted.

The Veteran seeks a higher evaluation for his cutaneous sarcoidosis with post-inflammatory hyperpigmentation. He is currently in receipt of a noncompensable evaluation prior to June 18, 2009 and a 60 percent rating thereafter. While he initially characterized this contention as a request for an earlier effective date for his 60 percent rating, the Board interprets the issue to be a request for an increased initial rating. The Veteran has proffered no argument that his effective date should be earlier than August 27, 2007. Specifically, the Veteran argued during his hearing, and the Board agrees, that entitlement to an evaluation of 60 percent should begin the earlier date of August 27, 2007. 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds, however, that the Veteran's impairment caused by his cutaneous sarcoidosis with post-inflammatory hyperpigmentation has not changed significantly during the appeal period and a uniform compensable rating is therefore warranted.

During the pendency of the appeal, the Veteran's cutaneous sarcoidosis with post-inflammatory hyperpigmentation is rated under DC 7806. 

VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Prior to August 13, 2018, under DC 7806, a maximum 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806.

Effective August 13, 2018, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a maximum 60 percent rating is assigned for at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824.

Of note, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the Court held that the types of systemic treatment that are compensable under DC 7806 are not limited to "corticosteroids or other immunosuppressive drugs;" rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects.

Here, the Board finds the Veteran meets the 60 percent criteria under the prior version of DC 7806, given he was initially granted his 60 percent rating in 2009, therefore, prior to the changes to the DC. In granting 60 percent, the RO, in their August 2011 rating decision relied on a June 2011 VA examination which indicated 40 percent of the Veteran's body was affected with no more than topical therapy required in the prior 12-month period. 

In reviewing the aforementioned June 2011 VA examination, the Board observes that the examiner specifically noted the Veteran's alternating use of methotrexate and prednisone to treat his skin rashes, both of which are considered systemic treatments in that they are prescribed to holistically treat conditions such as sarcoidosis that affects multiple organ systems within the body (here, the Veteran's skin and pulmonary symptoms). Specifically, methotrexate, according to the United States National Library of Medicine (MedlinePlus), is considered an immunosuppressant and prednisone is considered a corticosteroid. Moreover, the examiner lists several additional topical corticosteroids which, under Johnson, may also be considered systemic treatments. 862 F.3d 1351 (Fed. Cir. 2017).  

In addition, the Veteran also reported during his June 2011 VA examination that he had been experiencing flare-ups of his skin condition, including skin lesions on his torso and arms since 2004. This is confirmed by his treatment records. For example, private treatment records from August 2006 (so, prior to August 27, 2007) indicate the Veteran sought treatment and was prescribed prednisone for lesions noted on his chest, right leg, and upper eyelid. 

Consequently, after review of the evidence of record, the Board finds the evidence demonstrates that the Veteran's sarcoidosis with post-inflammatory hyperpigmentation has required constant or near constant systemic therapy (to include topical corticosteroids). With this, the Board also finds that the Veteran's treatment and use of topical corticosteroids meets the criteria of systemic use under the pre-amended version of DC 7806. Pursuant to Johnson v. Shulkin, the Board has considered the extent of the Veteran's use of topical corticosteroids, which is well-documented in his treatment records.  Moreover, treatment records note the use of other various systemic treatments (to include corticosteroids and immunosuppressants taken orally) and finds that the extent of the treatment over his total body area during the review period, including his head, face, torso, and lower extremities warrants a higher 60 percent rating. 

Finally, the Board finds that a schedular evaluation in excess of 60 percent is not warranted throughout the period on appeal as a 60 percent rating is the maximum rating under DC 7806. 38 C.F.R. § 4.118, DC 7806. The Board has also considered whether any other DCs related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118.

As such, the Board finds that a 60 percent rating is warranted under DC 7806 beginning the earlier date of August 27, 2007. 

2. Entitlement to an increased rating of 30 percent beginning March 9, 2006, but no earlier, for sarcoidosis is granted; however, entitlement to a rating higher than 30 percent is denied.

The Veteran is currently evaluated at 30 percent beginning November 29, 2006 to January 18, 2017. After January 18, 2017, the Veteran is evaluated at 100 percent (in other words, totally disabling) for tuberculosis with sarcoidosis. He is not contesting his total disability evaluation beginning in January 2017; therefore, the Board focuses its attention on the rating period prior to this date. 

The Veteran's service-connected sarcoidosis of the heart and lungs is rated under 38 C.F.R. § 4.97, DCs 6846-6600. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 6846 and 6600 reflect that the Veteran's sarcoidosis of the heart and lungs is to be rated under the General Rating Formula for evaluating the respiratory system.

Under DC 6846, chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment is assigned a noncompensable disability rating. Pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids warrants a 30 percent disability rating. Pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control merits a 60 percent disability rating. The maximum 100 percent disability rating is reserved for cor pulmonale, cardiac involvement with congestive heart failure, or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment.

Alternatively, sarcoidosis may be evaluated as chronic bronchitis with supplemental evaluation of extra-pulmonary involvement under the specific body system involved. Id. Chronic bronchitis is evaluated under 38 C.F.R. § 4.97, DC 6600. A 10 percent disability rating is assigned when forced expiratory volume in one second (FEV-1) is 71 to 80 percent of the predicted value, the FEV-1 to forced vital capacity (FVC) ratio (FEV-1/FVC) is 71 to 80 percent, or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) is 66 to 80 percent of the predicted value. A 30 percent disability rating is warranted for FEV-1 is 56 to 70 percent of the predicted value, the FEV-1/FVC is 56 to 70 percent, or DLCO (SB) is 56 to 65 percent of the predicted value. A 60 percent disability rating is merited when FEV-1 is 40 to 55 percent of the predicted value, the FEV-1/FVC is 40 to 55 percent, DLCO (SB) is 40 to 55 percent of the predicted value, or maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). The maximum disability rating of 100 percent is reserved for when FEV-1 is less than 40 percent of the predicted value, the FEV-1/FVC is less than 40 percent, DLCO (SB) is less than 40 percent of the predicted value, a maximum exercise capacity is less than 15 ml/kg/min in oxygen consumption (with cardiac or respiratory limitation), there is cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), or an episode or episodes of acute respiratory failure, or outpatient oxygen therapy is required. Post-bronchodilator results are to be used unless the results are poorer than pre-bronchodilator results.

As noted above, the Veteran's treatment records, as well as his hearing testimony, indicate he has a long history of taking corticosteroids to treat his sarcoidosis. Additionally, in March 2006, his FEV-1 was measured at 67 percent. In March 2007, his FEV-1 was measured at 69 percent. 

Effective dates for claims for increased disability ratings may be established up to one year prior to the date of claim if, based upon all the evidence of record, it can be factually ascertained that an increase in the Veteran's service-connected disability occurred during that year preceding the claim. See 38 U.S.C. § 5110(b)(3); C.F.R. § 3.400(o)(2); see also Hart, 21 Vet. App. at 509. In this case, the Veteran filed his claim for an increased rating on November 29, 2006; therefore, the Board may award an increased rating within the year prior to this date. Given the Veteran's FEV-1 reading was measured at 69 percent in March 2007 and this is considered within a year prior to November 29, 2006, the Board finds a 30 percent rating beginning March 9, 2006, but no earlier, for the Veteran's sarcoidosis is warranted. 

At the June 2015 VA examination it was noted that the Veteran used albuterol, methotrexate, meloxicam, and triamininolone topical. It was also noted that he uses inhalational bronchodilator therapy and required the use of corticosteroid medication. Pulmonary involvement was also noted as well as night sweat, but not weight loss or fever. He was also not noted to be using systemic high dose (therapeutic) corticosteroids. In addition, none of his FEV-1, FEV-1/FVC, DLCO (SB), or maximum oxygen consumption measurements met the criteria for a higher 60 percent rating.  

Consequently, the Veteran is found entitled to an evaluation of 30 percent beginning the earlier date of March 9, 2006; however, an evaluation higher than 30 percent is unwarranted prior to January 18, 2017 (at which time, the Veteran's sarcoidosis has been found to progress to tuberculosis and a higher 100 percent rating has been assigned). 

3. Entitlement to service connection for OSA is granted.

The Veteran contends that his OSA has been aggravated by his service-connected sarcoidosis.

Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

 In June 2015, a VA examiner opined that the condition was less likely than not related to the Veteran's service because it was not noted during service. In December 2015, an examiner also indicated OSA was unrelated to sarcoidosis, although noted that sleepiness from OSA may contribute to the morbidity of sarcoidosis. In addition, the examiner also indicated abnormal lung function in sarcoidosis may contribute to or worsen OSA. 

In September 2019, the Veteran submitted a private opinion indicating sarcoidosis aggravates OSA and noted that medical literature supported this relationship. In August 2019, the Veteran also submitted a second private opinion in which the examiner also indicated that the Veteran's OSA was aggravated by his sarcoidosis. Specifically, the examiner noted that she had reviewed the Veteran's medical history and indicated that the Veteran's weight had not likely played a role in his development of OSA, given he was not significantly overweight when he was first diagnosed. She also noted that sarcoidosis more likely than not was a factor in the Veteran's subsequent weight gain. Moreover, the examiner noted pulmonary notes from the Veteran's initial sleep study also expressed concern for sleep apnea related to his sarcoidosis and likely prompted the initial sleep study in 2007. 

The Board acknowledges the several negative nexus opinions provided by VA examiners; however, affords them less probative value. The June 2015 examiner did not consider any theories of aggravation. While the December 2015 examiner did indicate a relationship between sarcoidosis and OSA, the examiner nonetheless provided a negative opinion despite noting abnormal lung function in sarcoidosis may contribute to or worsen OSA. 

In contrast, the Veteran submitted two private examinations providing a positive nexus with adequate rationale. In particular, the Board takes note of the August 2019 opinion linking the Veteran's weight gain to the physical limitations of his sarcoidosis. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). 

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current OSA is aggravated beyond its natural progression by his service-connected sarcoidosis.  In this circumstance the Veteran is given the benefit of the doubt and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. When the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49.

4. Entitlement to service connection for ocular herpes is granted.

The Veteran contends his current ocular herpes is related to a diagnosis he received while serving overseas in the Philippines in May 1987 and treatment he received while serving overseas in Okinawa in August 1992.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

The Board concludes that the Veteran has a current disability that began during his active service.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The Veteran submitted a private medical opinion in October 2019 positively connecting his current ocular herpes diagnosis to his service. Specifically, the examiner noted that the Veteran initially began experiencing symptoms related to this condition in May 1987, during which time treatment records indicate he was seen for a rash below his eye. Treatment records noted that an "RPR" test was ordered and the examiner explained that this likely meant the provider at the time suspected an STD (an RPR test is used to test for syphilis). The examiner noted that the Veteran had been seen multiple times both during and after service for flare-ups related to this condition and concluded that it was more likely than not that his ocular herpes was related to the eye treatment he received during service. 

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's ocular herpes arose during service.  Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for ocular herpes is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

5. Entitlement to service connection for GERD is granted.

The Veteran contends that his GERD is directly related to his service. Alternatively, he contends that his GERD is secondarily related to or aggravated beyond its natural progression by his service-connected sarcoidosis. 

In support of his contentions, the Veteran submitted a private examination in September 2019. The examiner noted that medications used to treat sarcoidosis commonly aggravate GERD; specifically, the examiner noted the Veteran's lone-term use of inhalers such as Albuterol, Symibort and Advair, as well as his use of other pulmonary medications including prednisone and methotrexate. She also cited to several scientific articles and studies indicating sarcoidosis can cause diaphragmatic dysfunction, resulting in pressure gradient changes between the thorax and abdomen favoring the development of reflux. Consequently, she opined that the Veteran's GERD was more likely than not secondary to his service-connected sarcoidosis. 

 Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current GERD is proximately due to his service-connected sarcoidosis. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for GERD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102."

6. Entitlement to a compensable rating prior to September 4, 2019 is denied; however, a higher 20 percent rating is granted thereafter for corneal scarring of left eye with bilateral dry eyes. 

Prior to June 17, 2020, the Veteran's corneal scarring of the left eye and bilateral dry eye is rated noncompensable under 38 C.F.R. § 4.79, DC 6006, for retinopathy or maculopathy. It is rated 10 percent after June 17, 2020. 

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.

Under the former criteria, DC 6006 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009.

General Rating Formula for DCs 6000-6009

The General Rating Formula for DCs 6000 through 6009 instructs 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 6006 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye.

General Rating Formula for Disease of the Eye

The General Rating Formal 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.

Both the former and revised criteria provide for consideration of 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.

Visual Impairment

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. Id. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id.

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. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c).

TABLE FOR VISUAL ACUITY

The table of Impairment of Central Visual Acuity encompasses DCs 6061-66.

Under DC 6061, a 100 percent rating is warranted for anatomical loss of both eyes.

Under DC 6062, a 100 percent rating is warranted for no more than light perception in both eyes.

DC 6063 provides ratings where there is anatomical loss of one eye (the poorer eye). A 40 percent rating is warranted where visual acuity of the other eye is 20/40. A 50 percent rating is warranted where visual acuity of the other eye is 20/50. A 60 percent rating is warranted where visual acuity of the other eye is 20/100 or 20/70. A 70 percent rating is warranted where visual acuity of the other eye is 20/200. An 80 percent rating is warranted where visual acuity of the other eye is 15/200. A 90 percent rating is warranted where visual acuity of the other eye is 10/200. A 100 percent rating is warranted where visual acuity of the other eye is 5/200.  

DC 6064 provides ratings where there is no more than light perception in one eye (the poorer eye). A 30 percent rating is warranted where visual acuity in the other eye is 20/40. A 40 percent rating is warranted where visual acuity in the other eye is 20/50. A 50 percent rating is warranted where visual acuity in the other eye is 20/70. A 60 percent rating is warranted where visual acuity in the other eye is 20/100. A 70 percent rating is warranted where visual acuity in the other eye is 20/200. An 80 percent rating is warranted where visual acuity in the other eye is 15/200. A 90 percent rating is warranted where visual acuity in the other eye is 10/200. A 100 percent rating is warranted where visual acuity in the other eye is 5/200.

DC 6065 provides ratings where vision in one eye (the poorer eye) is 5/200. A 30 percent rating is warranted where vision in the other eye is 20/40. A 40 percent rating is warranted where vision in the other eye is 20/50. A 50 percent rating is warranted where vision in the other eye is20/70. A 60 percent rating is warranted where vision in the other eye is 20/100. A 70 percent rating is warranted where vision in the other eye is 20/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 90 percent rating is warranted where vision in the other eye is 10/200. A 100 percent rating is warranted where vision in the other eye is also 5/200.  

DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better.

Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted.

Where the visual acuity in one eye (the poorer eye) is 20/50, the following ratings apply. A 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40.

Where the visual acuity in one eye (the poorer eye) is 20/70, the following ratings apply. A 30 percent rating is warranted where vision in the other eye is also 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40.

Where the visual acuity in one eye (the poorer eye) is 20/100, the following ratings apply.  A 50 percent rating is warranted where vision in the other eye is also 20/100. A 30 percent rating is warranted where vision in the other eye is 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40.

Where visual acuity in one eye (the poorer eye) is 20/200, the following ratings apply. A 70 percent rating is warranted where vision in the other eye is also 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40.

Where visual acuity in one eye (the poorer eye) is 15/200, the following ratings apply. An 80 percent rating is warranted where vision in the other eye is also 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40.

Where visual acuity in one eye (the poorer eye) is 10/200, the following ratings apply. A 90 percent rating is warranted where vision in the other eye is also 10/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 50 percent rating is warranted where vision in the other eye is 20/70. A 40 percent rating is warranted where vision in the other eye is 20/50. A 30 percent rating is warranted where vision in the other eye is 20/40.

In March 2007, the Veteran was found to have dry eyes secondary to sarcoidosis, pinguecula OU, myopia, and sub-epithelial infiltrates secondary to a viral keroconjunctivitis unrelated to service. Corrected distance was measured at 20/25 in the right eye and 20/30 in the left. He was noted to be taking Restasis for his dry eyes.  

In April 2011, treatment notes indicate severe bilateral dry eye syndrome with resultant scarring, but no signs of cutaneous lesions. The Veteran also reported floaters. The Ophthalmologist noted a history of herpes simplex epithelial keratitis (HSV keratitis) but no active inflammation. The Veteran was advised he may need to be prescribed acyclovir if he had a recurrence of HSV keratitis.

In June 2011, the Veteran was provided a VA examination at which time he reported experiencing flare-ups of photophobia and eye symptoms twice per month. He was also noted to be using steroid eye drops twice a week. Corrected distance was 20/20 in each eye. Linear scarring was noted on the left cornea. Cornea changes in the left eye were noted to be consistent with HSV (herpetic keratoconjunctivitis).  

The Veteran was again examined in June 2015 at which time his dry eye syndrome was noted, along with his scattered subepithelial scars. Corrected distance acuity was measured 20/20 in each eye. Medial pingueculas (abnormal tissue) were noted in each eye and no visual field defects were found. No incapacitating episodes were noted. 

In June 2020, the Veteran submitted a written report of worsening symptoms, including blurred vision, floaters, headache and light sensitivity. He was then provided VA examination in August 2020 which revealed left eye distance corrected vision to be 20/50 and right eye distance corrected vision to be 20/40. The RO accordingly adjusted the Veteran's rating to 10 percent beginning June 17, 2020. 

Treatment notes, however, indicate the Veteran experienced a flare-up of his eye condition was seen for eye pain and photophobia and treated with oral antivirals in September and October 2019. He was seen again twice in September 2019.  Also, in October 2019, the Veteran submitted a private report also confirming the he regularly experienced flare-ups of his eye condition, including constant eye pain, blurred vision and light sensitivity. During these flare-ups he reported staying inside, away from the sunlight. Given the severity of his symptoms and that they have required specific eye clinic visits for treatment purposes, the Board finds this qualifies as an incapacitating episode under 38 C.F.R. § 4.79.

Consequently, the Board finds that because the Veteran attended three treatment visits for his eye condition beginning September 4, 2019 as a result of an incapacitating episode, a 20 percent rating is warranted beginning this date.  

Prior to September 4, 2019, however, the evidence of record indicates the Veteran neither experienced incapacitating episodes nor decreased visual acuity; meaning, his eye condition is considered noncompensable under both the former rating criteria as well as the post-2018 rating criteria. Consequently, the Board finds that a compensable initial rating is not warranted prior to September 4, 2019. 

In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable initial rating for his corneal scarring of left eye with bilateral dry eyes prior to September 4, 2019 and this portion of the claim must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107;38C.F.R. §§4.3, 4.7.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. B. Kucera

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.