Citation Nr: 21070558 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-56 784 DATE: November 24, 2021 ORDER Entitlement to an initial 10 percent rating, but not higher, for dry eye syndrome with keratitis and blepharitis is granted. REMANDED Entitlement to service connection for left hip disability, to include as secondary to the service-connected lumbar spine disability, is remanded. Entitlement to a rating higher than 10 percent for a lumbar spine disability prior to July 12, 2016, and higher than 20 percent as of July 12, 2016, is remanded. Entitlement to an initial higher than 10 percent for right hip disability prior to July 12, 2016, and higher than 0 percent as of July 12, 2016, is remanded. Entitlement to an initial higher than 0 percent for a right hip extension disability is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's bilateral dry eye syndrome, keratitis, and blepharitis manifested with corrected distance visual acuity, at worst, of 20/40 bilaterally, with an average concentric contraction of 56.25 degrees. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but not higher, for bilateral dry eye syndrome, keratitis, and blepharitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.79, Diagnostic Code 6018. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1990 to May 1991, from February 1993 to April 1993, in May 1999, from April 2005 to August 2005, and from November 2007 to August 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded the case for further development. Claims for increased ratings for a right elbow disability, scarring status post spinal fusion, a left shoulder disability, and migraine headaches were remanded for the issuance of a statement of the case. However, the Veteran did not submit a substantive appeal for those issues following the issuance of the December 2020 statement of the case. Therefore, those issues are no longer in appellate status. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The 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). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to an initial 10 percent rating, but not higher, for dry eye syndrome with keratitis and blepharitis The Veteran contends that the symptoms of dry eye syndrome with keratitis and blepharitis warrants a higher rating. The Veteran was assigned a 0 percent rating under Diagnostic Code 6018, for chronic conjunctivitis (non-trachomatous). 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. 83 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 using both the former and revised schedular rating criteria, although an increased rating based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria distinguish active and inactive disease processes. Under the former criteria, an active disease process (with objective findings, such as red, thick conjunctivae, mucous secretion, etc.) is assigned a 10 percent rating. Under the revised criteria, an active disease process is rated pursuant to the General Rating Formula for Diseases of the Eye, with a minimum rating of 10 percent. For an inactive disease process, both the former and revised criteria instruct to evaluate based on residuals, such as visual impairment and disfigurement (using Diagnostic Code 7800). Diagnostic Code 6025 is used for rating disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.), including dry eye syndrome. Under Diagnostic Code 6025 a 10 percent rating is warranted for unilateral involvement, and a 20 percent rating is warranted for bilateral involvement. There was no amendment to Diagnostic Code 6025. With regard to visual impairment, the May 2018 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. Under the General Rating Formula for Diseases of the Eye, a 10 percent rating is warranted with incapacitating episodes requiring at least one but less than three treatment visits for an eye condition during the past 12 months. A 20 percent rating is warranted for incapacitating episodes requiring at least three but less than five treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted with incapacitating episodes requiring at least five but less than seven treatment visits for an eye condition during the past 12 months. Finally, a 60 percent rating is warranted for incapacitating episodes requiring seven or more treatment visits for an eye condition during the past 12 months. For VA purposes, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. 38 C.F.R. § 4.79. For the purposes of ratings 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. 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. 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, Diagnostic Codes 6061-6091. The rating 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). Ratings of visual acuity are 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. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher rating will be used. 38 C.F.R. § 4.76(c). Diagnostic Code 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 the poorer eye is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Ratings of visual field are based on the remaining field of vision in each eye. Under Diagnostic Code 6080, a 10 percent rating is warranted for unilateral concentric contraction of the visual field with remaining field of 16 to 60 degrees; or the unilateral loss of the temporal half, nasal half, inferior half, or superior half of visual field. A 20 percent rating is warranted for unilateral concentric contraction of the visual field with remaining visual field of 6 to 15 degrees. Normal visual field extant at eight principle meridians is as follows: temporally is 85 degrees, down temporally is 85 degrees, down is 65 degrees, down nasally is 50 degrees, up nasally is 55 degrees, up is 45 degrees, and up temporally is 55 degrees. 38 C.F.R. § 4.76a, Table III. The extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. 38 C.F.R. § 4.77(a). The degrees lost are then added together to determine total degrees lost. The sum is divided by eight and represents the average contraction of the visual field. To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service-connected, separately rate the visual acuity and visual field defects (expressed as a level of visual acuity), and then combined under the provisions of § 4.25. 38 C.F.R. § 4.77(c). At a October 2012 VA examination, the Veteran reported dry eyes for a long time and that she used daily eye drops. Corrected distance measured 20/20 or better in both eyes. The examiner diagnosed blepharitis, dry eye syndrome, and keratitis. The blepharitis was not visually significant on examination. The examiner noted there was severe bilateral dry eye syndrome with daily use of lubricants. The keratitis was moderately severe with superficial punctate. A mild visual field defect was reported, but the required Goldmann testing was incomplete. The examiner reported 8 meridians for each eye when 16 are required. At a June 2016 VA examination, the Veteran did not report any problems with vision. Corrected distance measured 20/40 in both eyes. The examiner noted the bilateral dry eye syndrome was of moderate severity. There was no indication of whether the dry eyes affected the lacrimal apparatus. There were no visual field defects or incapacitating episodes. At a May 2021 VA examination, the Veteran reported using over-the-counter artificial tears, Restasis, and ophthalmic ointment. She had also used topical steroids. The Veteran wore sunglasses to help with the burning, light sensitivity, and foreign body sensation, especially while driving. Corrected distance measured 20/40 in the right eye and 20/20 or better in the left eye. Visual field testing showed an average concentric contraction of 56.25 degrees in both eyes. The examiner indicated the bilateral dry eye syndrome was not a disorder of the lacrimal apparatus. In addition, the bilateral eye disability did not cause a decrease in visual acuity or other visual impairment. There were no incapacitating episodes. After review of the record, the Boards finds a 10 percent rating, but not higher, is warranted throughout the appeal period for the blepharitis, dry eye syndrome, and keratitis. The Board notes that the Veteran's visual acuity was 20/40 or better bilaterally. While the Veteran did not have a decrease in visual acuity, there was a decrease in the Veteran's visual fields. The May 2021 VA examination showed an average concentric contraction of 56.25 degrees in both eyes. Under Diagnostic Code 6080, a bilateral remaining field of 46 to 60 degrees warrants a 10 percent rating. In the alternative, a bilateral remaining field of 46 to 60 degrees can be rated with the visual acuity of 20/50. Under Diagnostic Code 6066 visual acuity of 20/50 and 20/50 warrants a 10 percent rating. Both evaluations equate to a 10 percent rating, but cannot be assigned separately as that would constitute pyramiding. 38 C.F.R. § 4.14. As there was no indication of additional visual impairment, scarring and disfigurement, or incapacitating episodes, a higher rating is not warranted. Thus, the Boards finds a 10 percent rating, but not higher, is warranted for the bilateral eye disability. The Board acknowledges that there are no valid visual field test results during the period prior to May 2021. However, the Veteran's statements concerning visual impairment due to dry eyes have been consistent throughout the period on appeal, and medical evidence from the period, including the October 2012 VA examination report, document a mild visual field defect. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence warrants assigning a 10 percent rating, but not higher, for the entire period on appeal. The Board has considered whether a higher rating or any additional ratings are warranted under an alternative diagnostic code, but finds that there is no indication that the Veteran had any compensable symptoms or diagnoses to warrant any higher or additional disability ratings that are not already compensated with the 10 percent rating assigned. Accordingly, the Board finds that throughout the appeal period a 10 percent rating, but not higher, is warranted for bilateral blepharitis, dry eye syndrome, and keratitis. At no point during the appeal period has a higher rating been warranted. REASONS FOR REMAND 1. Entitlement to service connection for left hip disability, to include as secondary to the service-connected lumbar spine disability, is remanded. 2. Entitlement to a rating higher than 10 percent for a lumbar spine disability prior to July 12, 2016, and higher than 20 percent as of July 12, 2012, is remanded. The July 2019 Board remand instructed the RO to obtain updated VA examinations. While the examinations were obtained, updated treatment records indicate there are outstanding medical records. VA medical records show the Veteran has been receiving ongoing chiropractic treatment through the Community Care program. In addition, VA medical records also show consults for Choice referrals for chiropractic care for the service-connected lumbar spine disability. A remand is required to allow VA to obtain authorization and request these records. The claim for service connection for a left hip disability is inextricably intertwined with the claim for increased rating for the lumbar spine disability. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for service connection for a left hip disability must be deferred. The Board notes the November 2020 VA opinion stated there was no longer a left hip disability on the examination. The medical records indicate several falls due to Parkinson's. A January 2021 VA treatment record noted a recent fall with trauma to the right hip. However, as a left hip disability was demonstrated during the appeal period, including at the July 2016 VA examination, the Board finds an opinion is needed prior to adjudication. 3. Entitlement to an initial higher than 0 percent for a right hip extension disability is remanded. The Veteran was most recently examined for the hip disabilities in November 2020. Since then, a January 2021 VA treatment record noted a recent fall with trauma to the right hip. As the record indicates worsening since the November 2020 examination, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an additional VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). 4. Entitlement to an initial higher than 10 percent for right hip disability prior to July 12, 2016, and higher than 0 percent as of July 12, 2012, is remanded. The Veteran established service connection for right hip trochanteric bursitis and right hip trochanteric bursitis with limitation of extension in a May 2013 rating decision. The Veteran submitted several notices of disagreement in May 2014, including two for the right hip disabilities. Both claims were addressed in the August 2016 statement of the case and certified to the Board in November 2016. The Board notes the May 2021 supplemental statement of the case did not address the claim for an increased rating right hip trochanteric bursitis. The matters are REMANDED for the following action: 1. With any necessary authorization from the Veteran, obtain any outstanding VA and private treatment records, including from all Choice-authorized treatment providers. All records related to the Veteran's hip and lumbar spine disabilities must be obtained, to specifically include the June 2019 and April 2021 Community Care Consultations. All attempts to locate records must be documented in the claims file. 2. Issue a supplemental statement of the case did not address the claim for an increased rating right hip trochanteric bursitis. 3. After receipt of the outstanding records, schedule the Veteran for a VA examination conducted by a medical doctor to determine the nature and etiology of the left hip disability. The examiner is advised that a current left hip disability has been demonstrated during the appeal period. The claims file should be reviewed in conjunction with the opinion. The rationale for all opinions should be provided. The examiner should explicitly provide the following opinions: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that any left hip disability was incurred during service; is due to any event, disease, or injury during service; or manifested within one year after separation from service. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any left hip disability is due to or the result of the service-connected disabilities, including a lumbar spine disability, right hip disability, bilateral knee disabilities, bilateral lower extremity radiculopathy, bilateral plantar fasciitis, and Parkinson's disease. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that any left hip disability has been aggravated by the service-connected disabilities, including a lumbar spine disability, right hip disability, bilateral knee disabilities, bilateral lower extremity radiculopathy, bilateral plantar fasciitis, and Parkinson's disease. 4. Schedule the Veteran for an examination by a medical doctor to determine the current severity of the service-connected right hip disabilities. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and motion with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited range of motion caused by functional loss during a flare-up or after repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner does not have the knowledge or training. Any opinion expressed must be accompanied by a complete rationale. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.