Citation Nr: 21069331 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-35 145A DATE: November 18, 2021 ORDER A rating higher than 10 percent for gastroesophageal reflux disease (GERD) is denied. A 50 percent rating, but not more, for narrow angle glaucoma is granted from November 16, 2011. A rating higher than 10 percent for blepharitis with dry eye syndrome and bilateral excised pterygiums is denied. FINDINGS OF FACT 1. The Veteran's gastroesophageal reflux disease (GERD) manifests as epigastric distress with dysphagia, pyrosis, reflux, and regurgitation, but not substernal, arm, or shoulder pain and is not productive of considerable impairment of health. 2. The Veteran's narrow angle glaucoma manifests as decreased visual acuity of 5/200 or worse in the right eye and no worse than 20/50 in the left eye and decreased visual fields to 27 degrees in the right eye and 50 degrees in the left eye, but no impairment of muscle function or incapacitating episodes. 3. The Veteran's blepharitis with dry eye syndrome and bilateral excised pterygiums manifests as active pathology with symptoms. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for gastroesophageal reflux disease (GERD) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7346. 2. The criteria for a 50 percent rating, but not more, for narrow angle glaucoma are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6012-6065, 6080. 3. The criteria for a rating higher than 10 percent for blepharitis with dry eye syndrome and bilateral excised pterygiums have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6015-6018. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1976 to June 1980 and from May 2005 to September 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was provided with a hearing before the undersigned Veterans Law Judge in July 2018. A copy of the transcript has been associated with the claims file and reviewed accordingly. In April 2019, the Board dismissed the claim of service connection for prostate hypertrophy (BPH) with frequency urgency and remanded the remaining issues for further development. The Board is cognizant that the Veteran's representative listed TDIU as remaining on appeal. The AOJ did not include the issue in its most recent SSOC. For the entire period during which the Veteran has not had substantially gainful employment, however, the Veteran is now in receipt of a combined 100 percent rating. Further, there is not in effect a single disability that meets the criteria for SMC consideration under 38 U.S.C. § 1114(s). For these reasons, the question of TDIU is not longer before the Board based on the procedural history, contentions, and facts of this appeal. Increased Rating 1. A rating higher than 10 percent for gastroesophageal reflux disease (GERD) The Veteran was originally granted service connection for gastroesophageal reflux disease (GERD) in a March 2010 rating decision. At that time, this disability was assigned a noncompensable (0 percent) percent rating effective December 1, 2009. The Veteran's current claim for an increased rating was received November 16, 2011. The Veteran's GERD is rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346, for hiatal hernia. Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. For the reasons that follow, the Veteran's GERD manifested in two or more symptoms for the 30 percent evaluation of less severity. VA and private treatment records show complaints of reflux, regurgitation, dysphagia, pain, and burping. He was encouraged to follow a GERD diet. The November 2011 esophageal conditions disability questionnaire (DBQ) noted that the Veteran's treatment plan for his GERD included continuous medication. His symptoms included pyrosis, reflux, and regurgitation. Functionally, the Veteran reports episodes of symptoms severe enough to cause him to leave work. The March 2013 esophageal conditions DBQ shows diagnoses of GERD, Schatzki's ring, and esophagitis. His treatment plan for his GERD included continuous medication. His symptoms included persistently recurrent epigastric distress (four or more times per year lasting 10 days or more) and regurgitation (four or more times per year lasting 10 days or more). His esophageal conditions did not impact his ability to work. This examiner noted that GERD and heartburn were currently controlled. He presented on March 13, 2013, with new symptom of regurgitation and epigastric pain for six months. Evaluation was underway. The March 2017 esophageal conditions DBQ shows that Veteran's disability treatment plan included continuous medication. His symptoms included pyrosis (four or more times per year lasting 1 to 8 days) nad reflux (four or more times per year lasting 1 to 8 days). He did not have an esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. He had an acute gastric ulcer. He did not have any associated scars. His esophageal conditions did not impact his ability to work. A March 2019 endoscopy found normal nasopharynx, LA Grade B esophagitis, small hiatal hernia, gastric body ulcers, large antral ulcer, and acute duodenitis. The Veteran's medication was changed and he was instructed to follow ulcer diet and lifestyle recommendations. The June 2019 esophageal conditions DBQ shows diagnoses of GERD, hiatal hernia, and acute gastric ulcer. The Veteran's disability treatment plan included continuous medication. His symptoms included persistently recurrent epigastric distress (four or more times per year lasting 10 days or more), pyrosis (four or more times per year lasting 10 days or more), and reflux (four or more times per year lasting 10 days or more). He did not have an esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. He did not have any associated scars or other pertinent physical findings, complications, signs, or symptoms. His esophageal conditions did not impact his ability to work. The December 2019 esophageal conditions DBQ shows that the Veteran's treatment plan for GERD included continuous medication. His symptoms included dysphagia, pyrosis, reflux, and regurgitation. He did not have symptoms of substernal, arm, or shoulder pain; sleep disturbance caused by esophageal reflux; material weight loss; nausea; vomiting; hematemesis; or melena. He did not have an esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. He did not have any associated scars or other pertinent physical findings, complications, signs, or symptoms. His esophageal conditions did not impact his ability to work. This examiner noted that heartburn, even if frequent, does not cause limitations or restrictions. A higher 30 percent rating under DC 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Based in the above, the Veteran's GERD manifests as epigastric distress with dysphagia, pyrosis, reflux, and regurgitation. Despite the Veteran's frequent symptoms, there is no showing of accompanying substernal, arm, or shoulder pain or resulting considerable impairment of health. The key difference between a 10 percent and 30 percent rating is the severity of the symptoms, with a 10 percent rating having symptoms of less severity and a 30 percent rating having symptoms productive of considerable impairment of health. A veteran can have some or all of the symptoms listed in the criteria for a 30 percent rating, as is the case here, but if they are not productive of considerable impairment of health then they do not warrant a 30 percent rating. Thus, the Veteran's GERD did not more nearly approximate persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A higher 30 percent rating under DC 7346 is not warranted. 2. A rating higher than 40 percent for narrow angle glaucoma 3. A rating higher than 10 percent for blepharitis with dry eye syndrome and bilateral excised pterygiums As the Veteran is currently service-connected for two eye disabilities with potentially overlapping symptoms, the Board will address both together. The Veteran was originally granted service connection for narrow angle glaucoma in a March 2010 rating decision. At that time, this disability was assigned a noncompensable (0 percent) percent rating effective December 1, 2009. The Veteran was originally granted service connection for bilateral excised pterygiums in a December 1980 rating decision. At that time, this disability was assigned a noncompensable (0 percent) rating effective June 21, 1980. The Veteran was originally granted service connection for blepharitis with dry eye syndrome in a March 2010 rating decision. At that time, this disability was assigned a 10 percent rating effective December 1, 2009. The Veteran's current claim for an increased rating was received November 16, 2011. Ultimately, in a July 2020 decision review officer (DRO) decision, his disability rating for narrow angle glaucoma was increased to 40 percent effective November 16, 2011. During the pendency of this appeal, the Veteran underwent eye surgery to remove his pterygium and, in a May 2016 decision review officer decision, he was awarded a temporary total rating based on surgical treatment necessitating convalescence. This award was effective September 12, 2013, to November 1, 2013. The Veteran's narrow angle glaucoma is rated under hyphenated diagnostic code 6012-6065. His blepharitis with dry eye syndrome and bilateral excised pterygiums is rated under hyphenated diagnostic code 6015-6018. 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. 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. DC 6012 addresses angle-closure glaucoma. 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 6012 instructed to evaluate based on incapacitating episodes. 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 former DC 6012 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 6012 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. 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. Under the former criteria, DC 6015 addressed benign neoplasms of the eyeball and adnexa. Under the revised criteria, DC 6015 addresses benign neoplasms of the eye, orbit, and adnexa (excluding skin). There were no other substantive changes. Both the former and revised criteria instruct to separately evaluate visual and nonvisual impairment, e.g., disfigurement (DC 7800), and combine evaluations. Under the former criteria, DC 6018 instructs to evaluate inactive conjunctivitis based on residuals, such as visual impairment and disfigurement (DC 7800). For active conjunctivitis (with objective findings, such as red, thick conjunctivae, mucous secretion, etc.), a 10 percent rating is warranted. Under the revised criteria, DC 6018 also instructs, for active conjunctivitis, a minimum 10 percent rating is warranted, and further evaluation under the General Rating Formula for Diseases of the Eye may warrant a higher rating. When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the evaluation is determined by separately evaluating the visual acuity and visual field defect (expressed as a level of visual acuity) and combined under the provisions of 38 C.F.R. § 4.25. See 38 C.F.R. § 4.77 (c). The February 2012 eye conditions disability benefits questionnaire (DBQ) shows a current diagnosis of right eye pterygium and a history of bilateral recurrent pterygium, dry eye, glaucoma, and allergic conjunctivitis. His uncorrected distance visual acuity was 20/200 in the right eye and 20/70 in the left eye, correctable to 20/50 in the right eye and 20/40 or better in the left eye. His uncorrected near visual acuity was 20/100 in both eyes, correctable to 20/50 bilaterally. 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 results in severe irregular astigmatism. He did not have diplopia. He had right eye conjunctiva injected, conjunctival graft, and exposed Vicryl suture. He had scars on both corneae. He had bilateral peripheral iridotomy patent and nuclear sclerosis. His optic disc was .7/.7 bilaterally. He had a visual field defect with constriction of visual fields bilaterally, but not impairment sufficient to meet the statutory requirements for legal blindness based on visual field impairment. He did not have a scotoma. He did not have keratoconus and had not had a corneal transplant. His decreased vision was attributed to dry eyes. He did not have scarring of disfigurement attributable to an eye condition. In the prior twelve months, he did not have any incapacitating episodes attributable to an eye condition. Functionally, his eye disabilities precluded employment involving computer work. He was employed full-time as a family service specialist and reported missing 32 weeks in the prior year due to eye appointments and eye irritations. His employer was looking for another position that would not require computer work. In September 2013, the Veteran underwent right eye surgery, recurrent pterygium excision with amniotic membrane transplant (AMT) and Prokera. He complained of pain and light sensitivity following surgery. The May 2014 eye conditions DBQ shows diagnoses of left eye pterygium, bilateral corneal scarring, and bilateral dry eyes. His uncorrected left eye visual acuity was 10/200 in both distance and near vision, correctable to 20/100 for distance and 20/70 for near vision. His pupils were round and reactive to light. No afferent pupillary defect was present. He did not have anatomical loss or light perception only in either eye. He was able to recognize test letters at one foot or closer and able to perceive objects, hand movements, or count fingers at three feet. The visual acuity in his better (left) eye was not 20/200 or less so as to meet the statutory requirements for legal blindness. He did not have a corneal irregularity that results in severe irregular astigmatism. He did not have diplopia. Physical examination found dermatochalasis bilaterally, a right cornea scar, a pterygium on the left eye, and nuclear sclerosis bilaterally. Internally, his optic disc was.6/.6 bilaterally. The Veteran had a visual field defect, but no contraction of a visual field, loss of a visual field, or scotoma and this impairment was insufficient to meet the statutory requirements for legal blindness based on visual field impairment. The Veteran's visual impairment was attributed to his corneal conditions, including pterygium. He did not have scarring of disfigurement attributable to an eye condition. In the prior twelve months, he did not have any incapacitating episodes attributable to an eye condition. The Veteran's eye disabilities did not impact his ability to work. A June 2018 private treatment record showed best corrected visual acuity of 20/200 in the right eye and 20/50 in the left eye. At his July 2018 hearing, the Veteran testified that he had 20/200 vision in his right eye, which rendered him legally blind in that eye. He used a magnifying glass to read. The January 2020 eye conditions DBQ shows that current symptoms of the Veteran's eye disabilities include irritation, photosensitivity, and vision loss. He treats theses disabilities with eye drops. His right eye visual acuity was 5/200 or worse in both distance and near vision, with and without correction. His left eye uncorrected visual acuity was 20/50 for distance and 20/100 for near vision, correctable to 20/40 and 20/50 respectively. His pupils were round and reactive to light. No afferent pupillary defect was present. He did not have anatomical loss or light perception only in either eye. He was able to recognize test letters at one foot or closer and able to perceive objects, hand movements, or count fingers at three feet. The visual acuity in his better (left) eye was not 20/200 or less so as to meet the statutory requirements for legal blindness. He did not have a corneal irregularity that results in severe irregular astigmatism. He did not have diplopia. Physical examination found bilateral blepharitis and pterygium removal irregular conjunctivae. He had glaucomatous cup to disc ratios bilaterally. The Veteran had a visual field defect. The accompanying visual field perimeter chart showed loss of visual field as described below: Meridian Normal Right Eye Left Eye Temporally 85 34 65 Down temporally 85 38 60 Down 65 19 48 Down nasally 50 31 50 Nasally 60 30 56 Up nasally 55 17 44 Up 45 18 30 Up temporally 55 29 45 Total: 500 216 398 Average Concentric Contraction 62.5 27 49.75 He did not have a scotoma and this impairment was insufficient to meet the statutory requirements for legal blindness based on visual field impairment. The Veteran's visual impairment was attributed to his bilateral glaucoma and right eye cornea scar. He did not have scarring of disfigurement attributable to an eye condition. In the prior twelve months, he did not have any incapacitating episodes attributable to an eye condition. The Veteran's eye disabilities impacted his ability to work in that he may have issues with depth perception. VA treatment records show that the Veteran requires corrective lenses and uses eye drops for his bilateral eye disabilities. His best corrected vision was limited to finger count in the right eye and no worse than 20/50 in the left eye. Based on the above, the Veteran's bilateral eye disabilities manifests as visual impairment in both acuity and fields and active dry eyes. The degree of visual impairment attributable to each has not been clarified. As the rating criteria for both glaucoma and conjunctivitis call for minimum 10 percent ratings, attributing all visual impairment to a single disability is most favorable to the Veteran. Currently, VA has attributed the Veteran's visual impairment to his narrow angle glaucoma and so the Board will do so as well. The Veteran's narrow angle glaucoma manifests as decreased visual acuity of 5/200 or worse in the right eye and no worse than 20/50 in the left eye and decreased visual fields to 27 degrees in the right eye and 50 degrees in the left eye. He did not have impairment of muscle function or incapacitating episodes. When the worse eye is 5/200 and the better eye is 20/50, a 40 percent rating is warranted. See 38 C.F.R. § 4.79, DC 6065. This is the current rating assigned for this disability. A higher rating based on impaired visual acuity would require anatomical loss of the right eye and/or a more severe decreased in visual acuity in the left eye. See 38 C.F.R. § 4.79, DC 6065, 6063. In this case, the Veteran also has a compensable degree of visual field impairment. When there is asymmetric contraction of visual fields, the rating criteria allows for conversion to visual field equivalents. Visual field contraction to 27 degrees equates to 20/100 and 50 degrees equates to 20/50. See 38 C.F.R. § 4.79, DC 6080. Based on these equivalents, the Veteran's decreased visual field warrants a 20 percent rating. Under 38 C.F.R. § 4.77(c), these ratings are combined under the provisions of 38 C.F.R. § 4.25, which results in a combined rating of 46 percent, rounded to 50 percent. Thus, the Veteran's narrow angle glaucoma warrants a 50 percent rating, but not more, and to that extent his appeal is granted. With regard to his blepharitis with dry eye syndrome and bilateral excised pterygiums, this disability manifests as active pathology with symptoms of dry and irritated eyes, but he does not have disfigurement or any other non-visual impairments. This disability is rated by analogy to conjunctivitis under DC 6018, which provides a minimum 10 percent rating for active conjunctivitis. As the Veteran has current symptoms of dry eyes, the requirements for the minimum rating are met. He does not have disfigurement or any other compensable non-visual impairments that would allow for a higher rating under DC 6015. See 38 C.F.R. § 4.79. Likewise, the Veteran's visual impairment is already compensated in the 50 percent rating for narrow angle glaucoma, which is more favorable to the Veteran as any compensable rating for visual impairment would replace the 10 percent minimum rating. As such, a rating higher than the current 10 percent rating for blepharitis with dry eye syndrome and bilateral excised pterygiums is not warranted and his appeal is denied. Nathaniel Doan 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.