Citation Nr: 21068773 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-32 984 DATE: November 12, 2021 ORDER A compensable initial rating for bilateral dry eye syndrome and left eye vitreous floaters, prior to June 8, 2016, is denied. A rating higher than 20 percent for bilateral dry eye syndrome and left eye vitreous floaters, as of June 8, 2016, is denied. REMANDED Service connection for headaches is remanded. FINDINGS OF FACT 1. Prior to June 8, 2016, the Veteran's bilateral dry eye syndrome and left eye vitreous floaters manifested as left eye vitreous floaters, decreased right eye visual acuity to 20/25, and subjective complaints of light sensitivity and blurred vision. 2. As of June 8, 2016, the Veteran's bilateral dry eye syndrome and left eye vitreous floaters manifests as left eye vitreous floaters, dry eyes, and light sensitivity. CONCLUSIONS OF LAW 1. Prior to June 8, 2016, the criteria for a compensable initial rating for bilateral dry eye syndrome and left eye vitreous floater were not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6099-6025. 2. As of June 8, 2016, the criteria for a rating higher than 20 percent for bilateral dry eye syndrome and left eye vitreous floater are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6099-6025. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2003 to August 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2013 and October 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in July 2019. A transcript of the hearing is associated with the claims file. In November 2019, the Board reopened the issue of service connection for headaches; granted a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU); and remanded the underlying issued of service connection for headaches and the staged rating for bilateral dry eye syndrome and left eye vitreous floaters. Initial rating for bilateral dry eye syndrome and left eye vitreous floaters The Veteran was originally granted service connection for impairment of visual acuity in the May 2013 rating decision on appeal. At that time, he was assigned a noncompensable rating under hyphenated diagnostic code 6003-6066 effective February 4, 2011. The Board notes that the December 2008 amendment to the VA Schedule for Rating Disabilities removed Diagnostic Code 6003 for iritis and added iritis to Diagnostic Code 6000 (choroidopathy, including uveitis, iritis, cyclitis, and choroiditis). 38 C.F.R. § 4.79, Schedule of ratings - eye. Therefore, this diagnostic code was not available at the time of the May 2013 rating decision and it should have been hyphenated diagnostic code 6000-6066. The Veteran sought review by a decision review officer (DRO) and in a June 2016 DRO decision, this was recharacterized as bilateral dry eye syndrome and left eye vitreous floaters and assigned a 20 percent rating effective June 8, 2016. The Veteran has appealed this staged rating. The Veteran's bilateral eye disability is currently rated under hyphenated diagnostic code (DC) 6099-6025. 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. Both versions of DC 6025 pertain to disorders of the lacrimal apparatus. A 10 percent rating is warranted for unilateral involvement and a 20 percent rating is warranted for bilateral involvement. 38 C.F.R. § 4.79. Under the former criteria, the General Rating Formula for Diagnostic Codes 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, 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. 1. Prior to June 8, 2016 At his February 2016 decision review officer (DRO) hearing, the Veteran testified that he had light sensitivity and blurred vision. VA treatment records note complaints of left eye floaters since at least October 2010, when he reported a five year history of symptoms. This record notes visual acuity of 20/25 in the right eye and 20/20 in the left eye. A February 2012 VA treatment record found the Veteran's pupils equal, round, and reactive to light and accommodation. His Extraocular movements were intact. His visual fields were normal in the left eye. He had decreased visual acuity in right eye. Based on the above, prior to June 8, 2016, the Veteran's eye disability manifested as left eye vitreous floaters, decreased right eye visual acuity to 20/25, and subjective complaints of light sensitivity and blurred vision. This is insufficient to warrant a compensable rating. The decrease in right eye visual acuity fails to meet the 20/50 minimum for a compensable rating. There is no showing of impaired visual field or muscle function and no associated incapacitating episodes. Therefore, the evidence does not support a compensable rating based on visual impairment. Moreover, there is no showing of a lacrimal apparatus disorder during this time, so a compensable rating under DC 6025 is not warranted. As such, the Veteran's appeal for a compensable initial rating for his eye disability prior to June 8, 2016, is not warranted and, to this extent, his appeal is denied. 2. As of June 8, 2016 The June 8, 2016 eye conditions disability benefits questionnaire (DBQ) shows diagnoses of left eye vitreous floaters and bilateral dry eye syndrome. The Veteran reported worsening floaters and blurred vision with prolonged visual concentration. His bilateral visual acuity was 20/40 or better for both near and distance vision, with and without correction. His pupils were round and reactive to light. No afferent pupillary defect was present. 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 resulted in severe irregular astigmatism. He did not have diplopia. Physical examination found few plugged meibomian glands and trace telangiectasis at the margins bilaterally, bilateral 1+ injections of the conjunctivae/sclerae, and vitreous floaters in the left eye. He did not have a visual field defect. He had a disorder of the bilateral lacrimal apparatus described as dry eye syndrome with plugged meibomian glands and reduced tear break up time five seconds. He did not have scarring or disfigurement attributable to any eye condition. In the prior twelve months, he had not had any incapacitating episodes attributable to any eye condition. His eye conditions did not impact his ability to work. The July 2018 eye conditions DBQ shows diagnoses of left eye vitreous floaters, bilateral dry eye syndrome, and bilateral photophobia. The Veteran reported light sensitivity and using eye drops for his symptoms. His right eye uncorrected visual acuity was 20/40, both correctable to 20/20. His left eye visual acuity was 20/20 or better for both near and distance vision, with and without correction. His pupils were round and reactive to light. No afferent pupillary defect was present. 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 resulted in severe irregular astigmatism. He did not have diplopia. Physical examination found his bilateral eyes normal externally and found trace vitreous floaters in the left eye. He did not have a visual field defect. He did not have a disorder of the lacrimal apparatus, but did have bilateral dry eye syndrome since 2017. As no visual impairment was found, none was associated with either his bilateral dry eye syndrome or his left eye floaters. He did not have scarring or disfigurement attributable to any eye condition. In the prior twelve months, he had migraines caused by his photophobia. He had at least one, but less than three documented medical visits for an eye condition over the prior twelve months. His eye conditions did not impact his ability to work. At his July 2019 hearing, the Veteran testified that he treated his eye disability with eye drops and sunglasses. The November 2019 eye conditions DBQ shows diagnoses of left eye vitreous floaters and bilateral dry eye syndrome. The Veteran reported worsening light sensitivity and dryness since 2016. His current treatment was over-the-counter eye drops as needed and polarized sunglasses. His bilateral distance vision was 20/20 or better, with and without correction. His uncorrected near vision was 20/40 bilaterally, correctable to 20/20 or better. His pupils were round and reactive to light. No afferent pupillary defect was present. 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 resulted in severe irregular astigmatism. He did not have diplopia. Physical examination found turbid meibum, few capped glands and telangiectasis of the bilateral lids and lashes; 2+ bulbar injections of the conjunctivae/sclerae; arcus and tear breakup time zero seconds in the bilateral corneas; and vitreous floaters in the left eye. He did not have a visual field defect. He did not have a disorder of the lacrimal apparatus, but did have bilateral dry eye syndrome since at least 2016, which he treated with over-the-counter artificial tear drops. His visual impairment was attributed to his dry eye syndrome with light sensitivity. He did not have scarring or disfigurement attributable to any eye condition. In the prior twelve months, he had not had any incapacitating episodes attributable to any eye condition. His eye conditions impacted his ability to work in that his dry eye syndrome caused photophobia, eye irritation, and fluctuating vision that interfered with outdoor activities, driving at night, reading, and computer work. Based on the above, as of June 8, 2016, the Veteran's eye disability manifests as floaters, dry eyes, and light sensitivity. His corrected visual acuity was consistently correctable to 20/40 or better. There is no showing of impaired visual field or muscle function. With regard to the question of incapacitating episodes, the July 2018 DBQ notes at least one, but less than three incapacitating episodes, but describes these episodes as migraines related to photophobia. The other examinations found no incapacitating episodes. The Board notes that the issue of service connection for headaches is remanded below and, if successful, that disability will be rated based on the frequency of characteristic prostrating attacks, like the ones described by the July 2018 examiner. See 38 C.F.R. § 4.124a, DC 8100. As such, this is evidence in support of the Veteran's claim of service connection for headaches, not evidence of incapacitating episodes of eye disability. Thus, the record does not show a compensable degree of visual impairment or incapacitating episodes. Therefore, a compensable rating is not warranted for the Veteran's eye disability under either version of the General Rating Formula. The Board notes that the current 20 percent rating for this period is based on a bilateral disorder of the lacrimal apparatus. This is the highest rating available under DC 6025. Moreover, although the June 2016 DBQ characterizes the Veteran's bilateral dry eye syndrome as a lacrimal apparatus defect, this is subsequently contradicted in the remaining examinations, which note a distinction between a lacrimal apparatus defect and dry eye syndrome, repeatedly noting that the Veteran has the latter, not the former. The Veteran's dry eye syndrome is associated with noncompensable visual impairment, photophobia, and eye irritation necessitating the use of eye drops. There is no indication that the severity, frequency, and/or duration of these symptoms result in a level of impairment greater than the current 20 percent. Thus, as of June 8, 2016, a rating higher than 20 percent for right eye disability is not warranted. REASONS FOR REMAND Service connection for headaches is remanded. Unfortunately, another remand is necessary in this case. In its November 2019 remand, the Board acknowledged the earlier medical nexus opinions that failed to link the Veteran's current headaches to either his active duty military service or his service-connected posttraumatic stress disorder (PTSD) and then limited the requested opinion to whether the Veteran's current migraine headaches were caused or aggravated by his eye disability. In providing the November 2019 negative opinion, the VA neurologist noted that there was no mention of headaches starting behind either eye and the Veteran had a long history of psychiatric issues that could be a contributing factor. His September 2020 opinion likewise noted these psychiatric issues as a possible source of aggravation. These opinions suggest that the Veteran's headaches may have been aggravated by his PTSD, but fall should of providing a medical nexus opinion explicitly connecting the two and does not elaborate with a rationale. Additionally, a November 2017 VA treatment record notes headache pain in the frontal area behind his eyes and eye pain, in contrast to the rationale in the November 2019 opinion. Thus, a remand is necessary to address all theories of entitlement at once. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's current headache disability is at least as likely as not (1) related to his in-service motor vehicle accident; (2) proximately due to or aggravated beyond its natural progression by service-connected posttraumatic stress disorder (PTSD); or (3) proximately due to or aggravated beyond its natural progression by service-connected eye disability, to include its symptom of light sensitivity or photophobia. Provide a rationale to support the opinion(s). (Continued on the next page) 2. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time to respond. Then, return the case to the Board. Kristin Haddock 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.